88494 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

1Public Law 116–260 (Dec. 27, 2020). 

2 26 U.S.C. 9816, et seq. 

3 29 U.S.C. 1185e, et seq. 

4 42 U.S.C. 300gg–111, et seq. 

5Section 102(d)(1) of the No Surprises Act 

amended the Federal Employees Health Benefits 

(FEHB) Act, 5 U.S.C. 8901 et seq., by adding a new 

subsection (p) to 5 U.S.C. 8902. Under this new 

provision, each FEHB Program contract must 

require a carrier to comply with requirements 

described in sections 9816 and 9817 of the Code, 

sections 716 and 717 of ERISA, and sections 

2799A–1 and 2799A–2 of the PHS Act (as 

applicable) in the same manner as these provisions 

apply with respect to a group health plan or health 

insurance issuer offering group or individual health 

insurance coverage. 

6 26 U.S.C. 9816. 

7 29 U.S.C. 1185e, et seq. 

8 42 U.S.C. 300gg–111, et seq. 

9 26 U.S.C. 9816(c)(8). 

10 29 U.S.C. 1185e(c)(8). 

11 42 U.S.C. 300gg–111(c)(8). 

12 26 U.S.C. 9817. 

13 29 U.S.C. 1185f, et seq. 

14 42 U.S.C. 300gg–112, et seq. 

15 42 U.S.C. 300gg–131–139. 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 54 

[TD 9985] 

RIN 1545–BQ94 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2590 

RIN 1210–AC24 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 149 

[CMS–9890–F] 

RIN 0938–AV39 

Federal Independent Dispute 

Resolution (IDR) Process 

Administrative Fee and Certified IDR 

Entity Fee Ranges 

AGENCY: Internal Revenue Service (IRS), 

Department of the Treasury; Employee 

Benefits Security Administration, 

Department of Labor; Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services (HHS). 

ACTION: Final rules. 

SUMMARY: This document finalizes rules 

related to the fees established by the No 

Surprises Act for the Federal 

independent dispute resolution (IDR) 

process, as established by the 

Consolidated Appropriations Act, 2021 

(CAA). These final rules amend existing 

regulations to provide that the 

administrative fee amount charged by 

the Department of the Treasury, the 

Department of Labor, and the 

Department of Health and Human 

Services (the Departments) to 

participate in the Federal IDR process, 

and the ranges for certified IDR entity 

fees for single and batched 

determinations, will be set by the 

Departments through notice and 

comment rulemaking. The preamble to 

these final rules also sets forth the 

methodology used to calculate the 

administrative fee and the 

considerations used to develop the 

certified IDR entity fee ranges. This 

document also finalizes the amount of 

the administrative fee for disputes 

initiated on or after the effective date of 

these rules. Finally, this document 

finalizes the certified IDR entity fee 

ranges for disputes initiated on or after 

the effective date of these rules. 

DATES: These final rules are effective on 

January 22, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Shira B. McKinlay or William Fischer, 

Internal Revenue Service, Department of 

the Treasury, 202–317–5500; 

Shannon Hysjulien or Rebecca Miller, 

Employee Benefits Security 

Administration, Department of Labor, 

202–693–8335; and 

Jacquelyn Rudich or Nora Simmons, 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 301–492–5211. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Preventing Surprise Medical Bills and 

Establishing the Federal IDR Process 

Under the Consolidated Appropriations 

Act, 2021 

On December 27, 2020, the CAA was 

enacted.1 Title I, also known as the No 

Surprises Act, and title II 

(Transparency) of Division BB of the 

CAA amended chapter 100 of the 

Internal Revenue Code (Code), part 7 of 

the Employee Retirement Income 

Security Act (ERISA), and title XXVII of 

the Public Health Service Act (PHS Act). 

The No Surprises Act provides Federal 

protections against surprise billing by 

limiting out-of-network cost sharing and 

prohibiting balance billing in many of 

the circumstances in which surprise 

bills most frequently arise. In particular, 

the No Surprises Act added new 

provisions applicable to group health 

plans and health insurance issuers 

offering group or individual health 

insurance coverage. Section 102 of the 

No Surprises Act added section 9816 of 

the Code,2 section 716 of ERISA,3 and 

section 2799A–1 of the PHS Act,4 which 

contain limitations on cost sharing and 

requirements regarding the timing of 

initial payments and notices of denial of 

payment by plans and issuers for 

emergency services furnished by 

nonparticipating providers and 

nonparticipating emergency facilities, 

and for non-emergency services 

furnished by nonparticipating providers 

for patient visits to participating health 

care facilities, generally defined as 

hospitals, hospital outpatient 

departments, critical access hospitals, 

and ambulatory surgical centers.5

Section 103 of the No Surprises Act 

established a Federal IDR process that 

plans and issuers and nonparticipating 

providers and facilities may utilize to 

resolve certain disputes regarding outof-network rates under section 9816 of 

the Code,6 section 716 of ERISA,7 and 

section 2799A–1 of the PHS Act.8

Section 9816(c)(8) of the Code,9 section 

716(c)(8) of ERISA,10 and section 

2799A–1(c)(8) of the PHS Act 11 provide 

that each party to a determination under 

the Federal IDR process shall pay a fee 

for participating in the Federal IDR 

process, and the amount of the fee is an 

amount established by the Departments 

in a manner such that the total amount 

of fees paid by all parties is estimated 

to be equal to the amount of 

expenditures estimated to be made by 

the Departments for the year in carrying 

out the Federal IDR process. 

Section 105 of the No Surprises Act 

added section 9817 of the Code,12

section 717 of ERISA,13 and section 

2799A–2 of the PHS Act.14 These 

sections contain limitations on cost 

sharing and requirements for the timing 

of initial payments and notices of denial 

of payment by plans and issuers for air 

ambulance services furnished by 

nonparticipating providers of air 

ambulance services, and allow plans 

and issuers and nonparticipating 

providers of air ambulance services to 

utilize the Federal IDR process. 

The No Surprises Act also added 

provisions to title XXVII of the PHS Act 

in a new part E 15 that apply to health 

care providers, facilities, and providers 

of air ambulance services, such as 

prohibitions on balance billing for 

certain items and services and 

requirements related to disclosures 

about balance billing protections. 

The Departments, along with the 

Office of Personnel Management (OPM), 

have issued rules in 2021 and 2022 to 

implement various provisions of the No 

Surprises Act. More specifically 

relevant to this rulemaking, the 

Departments and OPM issued interim 

final rules (July 2021 interim final 


khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88495 

16 86 FR 36872 (July 13, 2021). 

17 86 FR 55980 (October 7, 2021). 

18 87 FR 52618 (August 26, 2022). 

19 26 U.S.C. 9816 and 26 U.S.C. 9817. 

20 29 U.S.C. 1185e, et seq. and 29 U.S.C. 1185f, 

et seq. 

21 42 U.S.C. 300gg–111, et seq. and 42 U.S.C. 

300gg–112, et seq. 

22References to a ‘‘participating facility’’ in this 

preamble mean a ‘‘participating health care 

facility,’’ as defined at 26 CFR 54.9816–3T, 29 CFR 

2590.716–3, and 45 CFR 149.30. 

23The interim final rules also include interim 

final regulations under 5 U.S.C. 8902(p) issued by 

OPM that specify how certain provisions of the No 

Surprises Act apply to health benefit plans offered 

by carriers under the FEHB Act. These provisions 

apply to carriers in the FEHB Program with respect 

to contract years beginning on or after January 1, 

2022. The disclosure requirements at 45 CFR 

149.430 regarding patient protections against 

balance billing are applicable as of January 1, 2022. 

24 26 U.S.C. 9816(c) and 26 U.S.C. 9817(b). 

25 29 U.S.C. 1185e(c) and 29 U.S.C. 1185f(b). 

26 42 U.S.C. 300gg–111(c) and 42 U.S.C. 300gg– 

112(b). 

27A health care facility, in the context of nonemergency services, is defined as (1) a hospital (as 

defined in section 1861(e) of the Social Security 

Act), (2) a hospital outpatient department, (3) a 

critical access hospital (as defined in section 

1861(mm)(1) of the Social Security Act), or (4) an 

ambulatory surgical center described in section 

1833(i)(1)(A) of the Social Security Act. Code 

section 9816(b)(2)(A)(ii), ERISA section 

716(b)(2)(A)(ii), and PHS Act section 2799A– 

1(b)(2)(A)(ii). 26 CFR 54.9816–3T, 29 CFR 

2590.716–3, and 45 CFR 149.30. 

28 26 U.S.C. 9816(c)(5)(F)(i). 

29 29 U.S.C. 1185e(c)(5)(F)(i). 

30 42 U.S.C. 300gg–111(c)(5)(F)(i). 

31 In the case of a batched dispute, the party with 

fewest determinations in its favor is considered the 

non-prevailing party and is responsible for paying 

the certified IDR entity fee. In the event that each 

party prevails in an equal number of 

determinations, the certified IDR entity fee will be 

split evenly between the parties. 86 FR 55980, 

56001. 

32 26 CFR 54.9816–8T(e)(2)(vii), 29 CFR 

2590.716–8(e)(2)(vii), and 45 CFR 149.510(e)(2)(vii). 

33 Id. 

34 Id. 

35 26 U.S.C. 9816(c)(8). 

36 29 U.S.C. 1185e(c)(8). 

37 42 U.S.C. 300gg–111(c)(8). 

38 26 U.S.C. 9816(c)(8)(B). 

39 29 U.S.C. 1185e(c)(8)(B). 

40 42 U.S.C. 300gg–111(c)(8)(B). 

rules 16 and October 2021 interim final 

rules) 17 and final rules (August 2022 

final rules) 18 implementing provisions 

of sections 9816 and 9817 of the Code,19

sections 716 and 717 of ERISA,20 and 

sections 2799A–1 and 2799A–2 of the 

PHS Act.21 Those rules implement 

provisions to protect consumers from 

surprise medical bills for emergency 

services, non-emergency services 

furnished by nonparticipating providers 

for patient visits to participating 

facilities 22 in certain circumstances, 

and air ambulance services furnished by 

nonparticipating providers of air 

ambulance services. Those rules also 

implement provisions to establish a 

Federal IDR process to determine 

payment amounts when there is a 

dispute between plans or issuers and 

providers, facilities, or providers of air 

ambulance services about the out-ofnetwork rate for these services if a 

specified State law as defined in 26 CFR 

54.9816–3T, 29 CFR 2590.716–3, and 45 

CFR 149.30 or an applicable All-Payer 

Model Agreement under section 1115A 

of the Social Security Act does not 

provide a method for determining the 

total amount payable. 

The July 2021 interim final rules and 

October 2021 interim final rules 

generally apply to plans and issuers 

(including grandfathered health plans) 

for plan years (in the individual market, 

policy years) beginning on or after 

January 1, 2022, and to health care 

providers, facilities, and providers of air 

ambulance services for items and 

services furnished during plan years (in 

the individual market, policy years) 

beginning on or after January 1, 2022.23

The August 2022 final rules became 

effective October 25, 2022, and are 

applicable for items or services 

provided or furnished on or after 

October 25, 2022, for plan years (in the 

individual market, policy years) 

beginning on or after January 1, 2022. 

B. October 2021 Interim Final Rules and 

Related Guidance 

The October 2021 interim final rules 

implement the Federal IDR process 

under sections 9816(c) and 9817(b) of 

the Code,24 sections 716(c) and 717(b) of 

ERISA,25 and sections 2799A–1(c) and 

2799A–2(b) of the PHS Act.26 The rules 

apply to emergency services, nonemergency services furnished by 

nonparticipating providers for patient 

visits to certain types of participating 

health care facilities 27 (unless an 

individual has been provided notice and 

waived the individual’s surprise billing 

protections, in accordance with 45 CFR 

149.410 or 149.420, as applicable), and 

air ambulance services furnished by 

nonparticipating providers of air 

ambulance services, for situations in 

which neither a specified State law as 

defined in 26 CFR 54.9816–3T, 29 CFR 

2590.716–3, and 45 CFR 149.30 nor an 

All-Payer Model Agreement under 

section 1115A of the Social Security Act 

applies. 

To implement the Federal IDR 

process, the October 2021 interim final 

rules include requirements governing 

the costs of the Federal IDR process. 

Under section 9816(c)(5)(F)(i) of the 

Code,28 section 716(c)(5)(F)(i) of 

ERISA,29 section 2799A–1(c)(5)(F)(i) of 

the PHS Act,30 and the October 2021 

interim final rules, the party whose offer 

is not selected is responsible for the 

payment of the fee charged by the 

certified IDR entity (certified IDR entity 

fee).31 Under the October 2021 interim 

final rules, as a condition of 

certification, the certified IDR entity 

must notify the Departments of the 

amount of the certified IDR entity fees 

it intends to charge for payment 

determinations, which is limited to a 

fixed certified IDR entity fee amount for 

single determinations and a separate 

fixed certified IDR entity fee amount for 

batched determinations.32 Each of these 

fixed certified IDR entity fees must be 

within a range set forth in guidance by 

the Departments, unless the certified 

IDR entity receives written approval 

from the Departments to charge a 

certified IDR entity fee outside that 

range.33 The October 2021 interim final 

rules describe the considerations that 

the Departments will use to develop the 

certified IDR entity fee ranges, including 

the anticipated time and resources 

needed for certified IDR entities to meet 

the requirements of those interim final 

rules, the volume of payment 

determinations, and the capacity of the 

Federal IDR process to efficiently 

handle the volume of IDR initiations 

and payment determinations, and 

provide that the Departments will 

review and update the allowable fee 

ranges annually based on these factors, 

the impact of inflation, and other cost 

increases. Those rules also provide that 

on an annual basis, the certified IDR 

entity may update its certified IDR 

entity fees within the ranges set forth in 

current guidance and seek approval 

from the Departments to charge fixed 

certified IDR entity fees beyond the 

upper or lower limits for certified IDR 

entity fees.34

Additionally, pursuant to section 

9816(c)(8) of the Code,35 section 

716(c)(8) of ERISA,36 and section 

2799A–1(c)(8) of the PHS Act,37 and 

under the October 2021 interim final 

rules, each party must pay an 

administrative fee for participating in 

the Federal IDR process. The 

administrative fee is established in 

guidance in a manner so that, in 

accordance with the requirements of 

section 9816(c)(8)(B) of the Code,38

section 716(c)(8)(B) of ERISA,39 and 

section 2799A–1(c)(8)(B) of the PHS 

Act,40 the total administrative fees paid 

for a year are estimated to be equal to 

the amount of expenditures estimated to 

be made by the Departments in carrying 


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88496 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

41 26 CFR 54.9816–8T(d)(2)(ii), 29 CFR 2590.716– 

8(d)(2)(ii), and 45 CFR 149.510(d)(2)(ii). 

42Centers for Medicare & Medicaid Services 

(September 30, 2021). Calendar Year 2022 Fee 

Guidance for the Federal Independent Dispute 

Resolution Process under the No Surprises Act. 

https://www.cms.gov/CCIIO/Resources/Regulationsand-Guidance/Downloads/Technical-GuidanceCY2022-Fee-Guidance-Federal-IndependentDispute-Resolution-Process-NSA.pdf. 

43Centers for Medicare & Medicaid Services 

(October 31, 2022). Calendar Year 2023 Fee 

Guidance for the Federal Independent Dispute 

Resolution Process under the No Surprises Act. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/cy2023-fee-guidancefederal-independent-dispute-resolution-processnsa.pdf. 

44Centers for Medicare & Medicaid Services 

(December 23, 2022). Amendment to the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act: Change in Administrative Fee. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/amended-cy2023-feeguidance-federal-independent-dispute-resolutionprocess-nsa.pdf. 

45Centers for Medicare & Medicaid Services 

(November 21, 2022). Notice of the Federal 

Independent Dispute Resolution (IDR) Team 

Technical Assistance to Certified Independent 

Dispute Resolution Entities (IDREs) in the Dispute 

Eligibility Determination Process. https://

www.cms.gov/files/document/idre-eligibilitysupport-guidance-11212022-final-updated.pdf. 

46Complaint, Tex. Med. Ass’n v. U. S. Dep’t of 

Health and Human Servs., No. 6:22–cv–00450–JDK 

(E.D. Tex. Nov. 30, 2022) (ECF No. 1). 

47 86 FR 36872 (July 13, 2021). 

48See Memorandum Opinion and Order, Tex. 

Med. Ass’n. v. U.S. Dep’t of Health & Hum. Servs., 

No. 6:22–cv–00450–JDK, 2023 WL 5489028 (E.D. 

Tex. Aug. 24, 2023). 

49Specifically, the District Court vacated certain 

provisions of 26 CFR 54.9816–6T and 54.9817–1T, 

29 CFR 2590.716–6 and 2590.717–1, and 45 CFR 

149.130 and 149.140. The District Court also 

vacated 5 CFR 890.114(a), insofar as it requires 

compliance with the vacated regulations and 

guidance. 

50Specifically, the District Court vacated FAQs 14 

and 15 of FAQs about Affordable Care Act and 

Consolidated Appropriations Act, 2021 

Implementation Part 55 (August 19, 2022), as well 

as portions of Technical Guidance for Certified IDR 

Entities at 2–3 (August 18, 2022). 

51Complaint, Tex. Med. Ass’n. v. U. S. Dep’t of 

Health and Human Servs., No. 6:23–cv–00059–JDK 

(E.D. Tex. Jan. 30, 2023) (ECF No. 1). 

52Centers for Medicare & Medicaid Services 

(December 23, 2022). Amendment to the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process Under the 

No Surprises Act: Change in Administrative Fee. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/amended-cy2023-feeguidance-federal-independent-dispute-resolutionprocess-nsa.pdf. 

53Complaint, Tex. Med. Ass’n. v. U. S. Dep’t of 

Health and Human Servs., No. 6:23–cv–00059–JDK 

(E.D. Tex. Jan. 30, 2023) (ECF No. 1). 

54See Memorandum Opinion and Order, Tex. 

Med. Ass’n. v. U.S. Dep’t of Health & Hum. Servs., 

No. 6:23–cv–00059–JDK, 2023 WL 4977746 (E.D. 

Tex. Aug. 3, 2023). 

55Centers for Medicare & Medicaid Services 

(December 23, 2022). Amendment to the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

out the Federal IDR process for that 

year.41

Contemporaneously with the October 

2021 interim final rules, the 

Departments released the Calendar Year 

2022 Fee Guidance for the Federal 

Independent Dispute Resolution Process 

Under the No Surprises Act (October 

2021 guidance), setting the 

administrative fee for both parties to a 

dispute at $50 per party.42 The October 

2021 guidance also established the 

range for fixed certified IDR entity fees 

for single determinations as $200–$500, 

and the range for fixed certified IDR 

entity fees for batched determinations as 

$268–$670, unless the Departments 

otherwise grant approval for the 

certified IDR entity to charge a fee 

outside these ranges. In October 2022, 

the Departments released the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process 

Under the No Surprises Act (October 

2022 guidance), again setting the 

administrative fee for both parties to a 

dispute at $50 per party.43 The October 

2022 guidance explained that the data 

available regarding usage of the Federal 

IDR process was not sufficiently reliable 

to support a change to either the 

estimated number of payment 

determinations for which administrative 

fees would be paid or the estimated 

ongoing program costs for 2023; 

therefore, the 2023 administrative fee 

amount due from each party for 

participating in the Federal IDR process 

would remain the same as the 2022 

administrative fee amount. The October 

2022 guidance permits certified IDR 

entities to charge a fee between $200 

and $700 for single determinations and 

between $268 and $938 for batched 

determinations, unless the Departments 

otherwise grant approval for the 

certified IDR entity to charge a fee 

outside of these ranges. In addition, to 

account for the heightened workload for 

batched determinations, the October 

2022 guidance permits a certified IDR 

entity to charge the following 

percentage of its approved certified IDR 

entity batched determination fee 

(‘‘batching percentage’’) for batched 

determinations, which are based on the 

number of line items initially submitted 

in the batch: 

• 2–20 line items: 100 percent of the 

approved batched determination fee; 

• 21–50 line items: 110 percent of the 

approved batched determination fee; 

• 51–80 line items: 120 percent of the 

approved batched determination fee; 

and 

• 81 line items or more: 130 percent 

of the approved batched determination 

fee. 

In December 2022, the Departments 

released the Amendment to the 

Calendar Year 2023 Fee Guidance for 

the Federal Independent Dispute 

Resolution Process Under the No 

Surprises Act: Change in Administrative 

Fee (December 2022 guidance), which 

amended the $50 per party 

administrative fee set in the October 

2022 guidance to $350 for calendar year 

2023.44 The change in the 

administrative fee for 2023 reflected the 

additional costs to the Departments to 

carry out the Federal IDR process as a 

result of the Departments’ enhanced role 

in calendar year 2023 in conducting preeligibility reviews to allow the certified 

IDR entities to complete their eligibility 

determinations more efficiently,45 as 

well as systemic improvements that 

allowed for the aggregation of data 

needed to estimate the rate at which 

disputes were determined eligible for 

the Federal IDR process and the rate at 

which one or both parties paid the 

administrative fee for purposes of 

calculating the administrative fee. The 

December 2022 guidance did not amend 

the certified IDR entity fee ranges 

provided in the October 2022 guidance. 

C. Recent Litigation 

On November 30, 2022, the Texas 

Medical Association, Tyler Regional 

Hospital, and a Texas physician filed a 

lawsuit (TMA III) 46 against the 

Departments and OPM, asserting that 

the July 2021 interim final rules,47

including the regulations governing how 

the qualifying payment amount (QPA) 

should be calculated, and certain related 

guidance documents conflicted with the 

statutory language. On August 24, 2023, 

the U.S. District Court for the Eastern 

District of Texas (District Court) issued 

a memorandum opinion and order 48

that vacated certain portions of the July 

2021 interim final rules and associated 

regulatory provisions 49 and portions of 

guidance documents,50 including 

portions that provided the methodology 

for calculating the QPA and 

interpretations for certified IDR entities 

related to the processing of disputes for 

air ambulance services. 

On January 30, 2023, the Texas 

Medical Association, Houston 

Radiology Associated, Texas 

Radiological Society, Tyler Regional 

Hospital, and a Texas physician filed a 

lawsuit (TMA IV) 51 against the 

Departments and OPM, asserting that 

the December 2022 guidance 52 that set 

the $350 per party administrative fee 

amount for 2023 was unlawfully issued 

without notice and comment 

rulemaking.53 On August 3, 2023, the 

District Court issued a memorandum 

opinion and order 54 vacating the 

portion of the December 2022 

guidance 55 that increased the 


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No Surprises Act: Change in Administrative Fee. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/amended-cy2023-feeguidance-federal-independent-dispute-resolutionprocess-nsa.pdf. 

56Specifically, the District Court vacated the 

requirement under 26 CFR 54.9816–8T(c)(3)(i)(C), 

29 CFR 2590.716–8(c)(3)(i)(C), and 45 CFR 

149.510(c)(3)(i)(C) that for a qualified IDR item and 

service to be considered the same or similar item 

and service, it must be billed under the same 

service code or a comparable code under a different 

procedural code system, such as the Current 

Procedural Terminology (CPT) codes with 

modifiers, if applicable, Healthcare Common 

Procedure Coding System (HCPCS) with modifiers, 

if applicable, or Diagnosis-Related Group (DRG) 

codes with modifiers, if applicable. 

57U.S. Department of Health and Human 

Services, U.S. Department of Labor, and U.S. 

Department of the Treasury (August 2023). Federal 

Independent Dispute Resolution (IDR) Process 

Administrative Fee FAQs. https://www.cms.gov/ 

files/document/idr-admin-fees-faqs-081123- 

508.pdf-0. 

58See U.S. Department of Health and Human 

Services, U.S. Department of Labor, U.S. 

Department of Treasury, Office of Personnel 

Management (October 6, 2023), FAQs about 

Consolidated Appropriations Act, 2021 

Implementation Part 62, available at https://

www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/ 

our-activities/resource-center/faqs/aca-part-62.pdf 

and https://www.cms.gov/files/document/faqs-part62.pdf. 

59See U.S. Department of Health and Human 

Services, U.S. Department of Labor, U.S. 

Department of Treasury, Office of Personnel 

Management (November 28, 2023), FAQs about 

Consolidated Appropriations Act, 2021 

Implementation Part 63, available at https://

www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/ 

our-activities/resource-center/faqs/aca-part-62.pdf 

and https://www.cms.gov/files/document/faqs-part63.pdf. 

60See U.S. Department of Health and Human 

Services, U.S. Department of Labor, U.S. 

Department of Treasury, Office of Personnel 

Management (November 28, 2023), Federal 

Independent Dispute Resolution (IDR) Process 

Batching and Air Ambulance FAQs, available at 

https://www.cms.gov/files/document/faqs-batchingair-ambulance.pdf. 

61 88 FR 75744. 62 88 FR 65888. 

administrative fee for the Federal IDR 

process to $350 per party for disputes 

initiated during the calendar year 

beginning January 1, 2023. The District 

Court also vacated certain provisions of 

the October 2021 interim final rules 

setting forth the batching criteria under 

which multiple IDR items or services 

may be considered jointly as part of a 

single IDR dispute.56 On August 11, 

2023, the Departments released 

guidance 57 to reflect the TMA IV 

opinion and order related to the 

administrative fee to clarify that the $50 

per party per dispute administrative fee 

amount established in the October 2022 

guidance applies for disputes initiated 

on or after August 3, 2023, and until the 

Departments take action to set a new 

administrative fee amount. 

On October 6, 2023, the Departments 

and OPM released ‘‘FAQs About 

Consolidated Appropriations Act, 2021 

Implementation Part 62’’ 58 to provide 

guidance related to the TMA III opinion 

and order. On November 28, 2023, the 

Departments released guidance in 

accordance with the TMA III and TMA 

IV opinions and orders 59 to clarify how 

certified IDR entities should determine 

whether a dispute is appropriately 

batched and how to submit single and 

batched air ambulance disputes.60

D. Federal Independent Dispute 

Resolution Operations Proposed Rules 

On November 3, 2023, the 

Departments published the Federal 

Independent Dispute Resolution 

Operations proposed rules 61 (IDR 

Operations proposed rules). Those 

proposed rules included new proposed 

requirements for disclosing information 

when initiating the Federal IDR process 

and the provision of certain claims 

codes with paper or electronic 

remittances. Additionally, those 

proposed rules would amend certain 

requirements related to the open 

negotiation period, initiation of the 

Federal IDR process, eligibility 

determinations, batched disputes, 

extensions due to extenuating 

circumstances, and the collection of 

administrative fees and certified IDR 

entity fees. Lastly, those proposed rules 

would require plans and issuers to 

register with the Federal IDR portal. 

With respect to the administrative fee, 

the Departments proposed in the IDR 

Operations proposed rules to collect the 

administrative fee directly from the 

parties rather than having the certified 

IDR entities collect the administrative 

fee on the Departments’ behalf. The 

Departments also proposed required 

timeframes for the initiating and noninitiating parties to pay the 

administrative fee and proposed to 

establish consequences for non-payment 

of the administrative fee for each party. 

Finally, to ensure that the Federal IDR 

process is accessible to all parties, the 

Departments proposed to charge both 

parties a reduced administrative fee 

when the highest offer made during 

open negotiation by either party was 

less than a predetermined threshold and 

proposed to charge the non-initiating 

party a reduced administrative fee when 

the dispute is determined ineligible by 

either the certified IDR entity or the 

Departments, as applicable. 

To align with these proposals, the 

Departments also set forth the 

methodology inputs used to calculate 

the proposed administrative fee 

amounts in the preamble to the IDR 

Operations proposed rules that would 

be effective for disputes initiated on or 

after January 1, 2025. The Departments 

proposed that the full administrative fee 

amount would be $150 per party per 

dispute, the reduced administrative fee 

for both parties when the highest offer 

made by either party during open 

negotiation was less than the threshold 

would be $75 per party per dispute (50 

percent of the full administrative fee 

amount), and the reduced 

administrative fee for non-initiating 

parties in ineligible disputes would be 

$30 per non-initiating party per 

ineligible dispute (20 percent of the full 

administrative fee amount). 

The inputs to the methodology set 

forth in this preamble and the 

administrative fee amount the 

Departments are finalizing in these final 

rules are effective for disputes initiated 

on or after the effective date of these 

final rules. In contrast, the proposed 

administrative fee structure and 

administrative fee amounts based on 

inputs to the methodology set forth in 

the IDR Operations proposed rules, if 

finalized, would be effective for 

disputes initiated on or after January 1, 

2025. The administrative fee policies 

finalized in these final rules are 

effective, and unchanged by the 

proposals in the IDR Operations 

proposed rules, unless and until 

superseding administrative fee policies 

in the IDR Operations proposed rules 

are adopted. 

E. Public Comments Received in 

Response to Proposed Rules 

In the September 26, 2023 Federal 

Register, the Departments published the 

Federal Independent Dispute Resolution 

(IDR) Process Administrative Fee and 

Certified IDR Entity Fee Ranges 

proposed rules (IDR Fees proposed 

rules),62 which proposed to amend 

existing regulations to provide that the 

administrative fee amount charged by 

the Departments to participate in the 

Federal IDR process, and the ranges for 

certified IDR entity fees for single and 

batched determinations, would be set by 

the Departments through notice and 

comment rulemaking. The IDR Fees 

proposed rules also discussed the 

methodology used to calculate the 

administrative fee and the 

considerations used to develop the 

certified IDR entity fee ranges. Finally, 

the IDR Fees proposed rules proposed 

the amount of the administrative fee and 

the certified IDR entity fee ranges for 

disputes initiated on or after the later of 

the effective date of these rules or 

January 1, 2024. 

The Departments received 44 

comments on many different aspects of 

the IDR Fees proposed rules. In 


khammond on DSKJM1Z7X2PROD with RULES2
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63See 88 FR 75744. 

64See Memorandum Opinion and Order, Tex. 

Med. Ass’n., et al. v. U.S. Dep’t of Health and 

Human Servs., et al., No. 6:23–cv–00059–JDK (E.D. 

Tex. August 3, 2023). 

particular, the Departments received 

many comments stating that the 

administrative fee amount and the 

certified IDR entity fee ranges create a 

barrier to accessing the Federal IDR 

process for many parties, particularly 

small, rural, or independent providers, 

and these comments supported 

retaining the current $50 per party per 

dispute administrative fee amount. The 

Departments also received many 

comments on the proposed certified IDR 

entity fee ranges, particularly the 

proposed additional tiered batched fee 

range for disputes with more than 25 

line items. While some commenters 

supported the increased flexibility for 

certified IDR entity fee ranges, many 

commenters were concerned about the 

proposed further increases in the 

certified IDR entity fee ranges. The 

Departments respond to these comments 

in section II of this preamble. 

Many comments concerned matters 

that were outside of the scope of the 

proposed rules and therefore are not 

addressed in these final rules. For 

example, the Departments received 

comments stating that the current 

Federal IDR process lacks the efficiency 

needed to resolve disputes quickly. The 

Departments also received many 

comments related to the eligibility 

determination process, including on 

difficulties determining eligibility in 

States with a specified State law and the 

lack of information provided by plans 

and issuers. Comments on the efficiency 

of the Federal IDR process and 

eligibility determinations relate to 

operations that are outside of the scope 

of these final rules’ limited focus on the 

administrative fee and certified IDR 

entity fee ranges and the processes for 

setting such amounts. The Departments 

encourage interested parties to submit 

comments regarding the proposals 

included in the IDR Operations 

proposed rules, including the proposal 

to establish a Departmental eligibility 

review process, in accordance with the 

instructions set forth in those proposed 

rules.63

Some other out-of-scope comments 

addressed the impacts of the Federal 

IDR portal closure, which occurred in 

response to litigation previously 

described in this preamble. For 

example, the Departments received 

comments requesting that, as a result of 

TMA IV, the Departments should refund 

$300 to each party that paid a $350 

administrative fee between January 1, 

2023 and August 3, 2023, and the 

Departments should offer an extension 

to parties that would have initiated a 

dispute if the administrative fee during 

that time was $50, rather than $350, to 

now initiate that dispute. The 

Departments note that this relief was 

requested by the plaintiffs in TMA IV 

and was denied by the court.64

Comments also addressed the impact of 

TMA III on the calculation of the QPA, 

specifically asking the Departments to 

address underpayments to providers 

due to purported artificially suppressed 

QPAs. Additionally, the Departments 

received comments related to the 

batching requirements for submission of 

disputes. Some of these comments 

addressed specific difficulties in 

batching emergency medicine, 

radiology, and anesthesiology services 

and expressed a desire to broaden the 

batching criteria. While the IDR 

Operations proposed rules included 

proposals related to the batching 

requirements, these comments were 

outside the scope of this rulemaking 

because the IDR Fees proposed rules did 

not propose any changes to the batching 

requirements or calculation of the QPA. 

Finally, the Departments received 

many comments suggesting different 

administrative fee structures. For 

example, the Departments received 

comments suggesting that the 

administrative fee amount be split 

between the parties, be refundable to the 

prevailing party, be funded 75 percent 

by plans and issuers and 25 percent by 

providers or be payable at the end of the 

Federal IDR process. The Departments 

also received comments recommending 

a variable administrative fee amount 

tied to the amount in dispute or the 

QPA, either for all disputes or just for 

batched disputes. Further comments 

suggested capping the administrative fee 

amount or imposing a base 

administrative fee amount and an 

additional tiered fee amount based on 

the amount in dispute. 

As a result of the TMA IV opinion and 

order having set aside the Departments’ 

guidance establishing administrative 

fees, the Departments set a goal of 

establishing in rulemaking 

administrative fee amounts that would 

be effective as close to January 1, 2024 

as possible, because the current $50 

administrative fee amount is insufficient 

to satisfy the statutory requirement that 

the total amount of fees paid for the year 

be estimated to be equal to the amount 

of expenditures estimated to be made 

for the year in carrying out the Federal 

IDR process. If the Departments were to 

continue to impose a $50 per party per 

dispute administrative fee amount 

throughout 2024, the Departments 

estimate that they would collect 

approximately $24.6 million in 

administrative fees for the year (492,000 

administrative fees paid × $50 per party 

per dispute), as discussed further in 

section IV.D.2.a of this preamble. As 

discussed further in section II.A of this 

preamble, the Departments estimate that 

their expenditures to carry out the 

Federal IDR process in 2024 will be 

approximately $56.6 million. Therefore, 

if the administrative fee amount remains 

at $50 per party per dispute in 2024, the 

Departments would significantly undercollect administrative fees required to 

carry out the Federal IDR process. 

Accordingly, to be able to implement an 

increase to the administrative fee 

amount as soon as possible, consistent 

with the statutory requirement, the IDR 

Fees proposed rules proposed the 

amount of the administrative fee and the 

preamble to the proposed rules 

described the methodology for 

calculating it. 

The Departments did not propose any 

changes to the structure of the 

administrative fee as this would take 

longer to develop and implement and 

would be more efficiently 

operationalized with the changes 

proposed in the IDR Operations 

proposed rules, which are intended to 

be more comprehensive. While the 

Departments considered alternative fee 

structures in this rulemaking, the 

Departments were of the view that 

addressing the structure of the 

administrative fee in the IDR Operations 

proposed rules would give interested 

parties more time to comment, consider, 

and prepare for any fee structure 

change, because the effective date of the 

IDR Operations proposed rules, if 

finalized, will be later than the effective 

date of these final rules. 

Additionally, the policies proposed in 

the IDR Operations proposed rules 

would require more time for the 

Departments to develop and implement 

due to the substantial changes to the 

Federal IDR portal required by those 

proposals, if finalized, including 

adopting new processes to collect the 

administrative fees directly from the 

parties and collecting differing amounts 

of administrative fees from different 

parties in certain circumstances, as 

described further in the IDR Operations 

proposed rules. Therefore, the 

Departments deferred those proposed 

changes to the Federal IDR process and 

administrative fee structure and 

collection procedures to the IDR 

Operations proposed rules and 

prioritized completing this rulemaking. 

The Departments encourage interested 

parties to submit relevant comments 


khammond on DSKJM1Z7X2PROD with RULES2
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65See 88 FR 75744. 

66 26 U.S.C. 9816(c)(8)(A). 

67 29 U.S.C. 1185e(c)(8)(A). 

68 42 U.S.C. 300gg–111(c)(8)(A). 

69 26 CFR 54.9816–8T(d)(2)(i), 29 CFR 2590.716– 

8(d)(2)(i), and 45 CFR 149.510(d)(2)(i). 

70 26 U.S.C. 9816(c)(8)(B). 

71 29 U.S.C. 1185e(c)(8)(B). 

72 42 U.S.C. 300gg–111(c)(8)(B). 

73 26 CFR 54.9816–8T(d)(2)(ii), 29 CFR 2590.716– 

8(d)(2)(ii), and 45 CFR 149.510(d)(2)(ii). 

74As previously mentioned, in the event the 

effective date of these final rules is after January 1, 

2024, the $50 per party per dispute administrative 

fee amount in effect for 2023, as provided in the 

October 2022 guidance, will continue to apply to 

disputes initiated between January 1, 2024 and the 

effective date of these rules. 

75The list of expenditures associated with the 

estimated $70 million was provided in the IDR Fees 

proposed rules at 88 FR 65893. 

76As described in the IDR Fees proposed rules, 

the Departments estimated that the proposed 

administrative fee amount of $150 per party per 

dispute would result in an estimated annual 

collection approximately equal to the estimated 

annual expenditures of approximately $70 million. 

See 88 FR 65888 at 65899. 

regarding batching and the 

administrative fee structure, the new 

inputs to the administrative fee 

methodology, and the amount of the fee 

proposed in the IDR Operations 

proposed rules, in response to those 

proposed rules.65

The Departments also sought to 

establish in rulemaking certified IDR 

entity fee ranges that would be effective 

as close to January 1, 2024 as possible, 

because this effective date would 

provide predictability for certified IDR 

entities, who must plan for and finalize 

their 2024 certified IDR entity fixed fee 

amounts, and parties, who must budget 

for their participation in the Federal IDR 

process taking into account both the 

administrative and certified IDR entity 

fees. Establishing the certified IDR 

entity fee ranges in rulemaking with an 

effective date close to January 1, 2024 

would also allow for greater 

transparency than the current method of 

establishing the fee ranges in guidance. 

F. Scope and Purpose of Rulemaking 

These final rules amend 26 CFR 

54.9816–8(d)(2)(ii) and (e)(2)(vii), 29 

CFR 2590.716–8(d)(2)(ii) and (e)(2)(vii), 

and 45 CFR 149.510(d)(2)(ii) and 

(e)(2)(vii) to provide that the 

administrative fee amount and the 

ranges for certified IDR entity fees for 

single and batched disputes will be set 

by the Departments through notice and 

comment rulemaking, rather than in 

guidance published annually. The 

preamble to this rulemaking also sets 

forth the methodology used to calculate 

the administrative fee amount and the 

considerations used to develop the 

certified IDR entity fee ranges. These 

rules also finalize the administrative fee 

amount and certified IDR entity fee 

ranges for disputes initiated on or after 

the effective date of these rules. The 

finalized administrative fee amount and 

certified IDR entity fee ranges in these 

rules will remain in effect until changed 

by notice and comment rulemaking. 

The IDR Fees proposed rules 

proposed that the administrative fee 

amount and certified IDR entity fee 

ranges finalized in these final rules 

would be effective for disputes initiated 

on or after the later of the effective date 

of these rules or January 1, 2024. As 

these final rules will not be effective by 

January 1, 2024, the Departments are 

finalizing the proposal that the 

administrative fee amount and certified 

IDR entity fee ranges in these rules will 

be effective for disputes initiated on or 

after the effective date of these rules, 

which is 30 calendar days from 

publication in the Federal Register. 

II. Overview of the Final Rules— 

Departments of the Treasury, Labor, 

and HHS 

A. Administrative Fee Amount and 

Methodology 

1. Summary of Proposed and Finalized 

Policies 

Under section 9816(c)(8)(A) of the 

Code,66 section 716(c)(8)(A) of ERISA,67

section 2799A–1(c)(8)(A) of the PHS 

Act,68 and the October 2021 interim 

final rules,69 each party to a 

determination for which a certified IDR 

entity is selected must pay an 

administrative fee for participating in 

the Federal IDR process. Under section 

9816(c)(8)(B) of the Code,70 section 

716(c)(8)(B) of ERISA,71 section 2799A– 

1(c)(8)(B) of the PHS Act,72 and the 

October 2021 interim final rules,73 the 

administrative fee is established in a 

manner such that the total amount of 

administrative fees paid for a year are 

estimated to be equal to the amount of 

expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process for that year. 

The Departments proposed to 

establish the amount of the 

administrative fee through notice and 

comment rulemaking by amending 26 

CFR 54.9816–8(d)(2)(ii), 29 CFR 

2590.716–8(d)(2)(ii), and 45 CFR 

149.510(d)(2)(ii). The Departments also 

proposed at 26 CFR 54.9816–8(d)(2)(ii), 

29 CFR 2590.716–8(d)(2)(ii), and 45 CFR 

149.510(d)(2)(ii) that, for disputes 

initiated on or after the later of the 

effective date of these rules or January 

1, 2024, the administrative fee amount 

would be $150 per party per dispute, 

which would remain in effect until 

changed by notice and comment 

rulemaking.74 Under the proposed rules, 

the Departments would have retained 

the flexibility to update the 

administrative fee more or less 

frequently than annually if the total 

estimated amount of administrative fees 

paid or amount of expenditures 

estimated to be made by the 

Departments in carrying out the Federal 

IDR process changed such that a new 

administrative fee amount would be 

required to satisfy the requirement that 

the total amount of administrative fees 

paid is estimated to be equal to the 

amount of expenditures estimated to be 

made by the Departments in carrying 

out the Federal IDR process. 

The Departments proposed to set the 

administrative fee amount by estimating 

the amount of expenditures made by the 

Departments in carrying out the Federal 

IDR process and dividing this amount 

by the estimated total number of 

administrative fees paid by the parties. 

As explained in the preamble to the IDR 

Fees proposed rules, the Departments 

estimated the total number of 

administrative fees paid based on the 

total volume of closed disputes. 

For the purpose of calculating the 

administrative fee amount in the IDR 

Fees proposed rules, the Departments 

projected that approximately 225,000 

disputes would be closed annually, 

resulting in 450,000 administrative fees 

paid. Additionally, the Departments 

estimated that the expenditures made by 

the Departments for carrying out the 

Federal IDR process in 2024 would be 

approximately $70 million.75 Using this 

methodology, proposed in paragraphs 

26 CFR 54.9816–8(d)(2)(ii), 29 CFR 

2590.716–8(d)(2)(ii), and 45 CFR 

149.510(d)(2)(ii), the Departments 

calculated the proposed administrative 

fee for disputes initiated on or after the 

effective date of these rules, and 

continuing until changed by notice and 

comment rulemaking, by dividing the 

annual expenditures of approximately 

$70 million estimated to be made by the 

Departments in carrying out the Federal 

IDR process by 450,000, the estimated 

annual number of administrative fees to 

be paid by the disputing parties. This 

resulted in a proposed administrative 

fee amount of $150 per party per 

dispute.76

After considering comments received 

on the proposals, as discussed further in 

this preamble section, the Departments 

are finalizing the policy to set the 

administrative fee amount in notice and 

comment rulemaking no more 

frequently than once per calendar year. 

The Departments may set the 

administrative fee less frequently than 

annually if the Departments estimate 


khammond on DSKJM1Z7X2PROD with RULES2
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77Section 9816(c)(8)(B) of the Code, section 

716(c)(8)(B) of ERISA, and section 2799A–1(c)(8)(B) 

of the PHS Act. 

that the total amount of administrative 

fees paid under the current 

administrative fee amount would 

continue to be equal to the amount of 

expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process for the upcoming 

calendar year. 

Additionally, in response to 

comments received on the proposals, 

the Departments are modifying the 

administrative fee methodology used to 

estimate the number of administrative 

fees paid. The Departments will use the 

estimated number of administrative fees 

paid to certified IDR entities, rather than 

the estimated number of closed 

disputes, to estimate the total number of 

administrative fees paid. In addition, 

the Departments will not assume, as set 

forth in the IDR Fees proposed rules, a 

25 percent reduction in the volume of 

disputes as the result of the District 

Court vacating certain batching 

requirements in TMA IV. The 

Departments are also revising the 

expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process from approximately 

$70 million to approximately $56.6 

million to reflect a reduction in the 

Departments’ anticipated assistance 

with eligibility determinations, as 

discussed later in this preamble. 

Collectively, these modifications to the 

methodology result in a finalized 

administrative fee amount of $115 per 

party per dispute for disputes initiated 

on or after the effective date of these 

rules. As the administrative fee 

methodology in the IDR Operations 

proposed rules included some of the 

same elements as the administrative fee 

methodology in the IDR Fees proposed 

rules, the Departments will consider 

whether any modifications made to the 

administrative fee methodology in these 

final rules should also be adopted when 

finalizing the administrative fee amount 

using the methodology proposed in the 

IDR Operations proposed rules. 

2. Summary of Comments Received and 

Responses to Comments 

a. Establishing the Administrative Fee 

in Notice and Comment Rulemaking 

Many commenters supported the 

proposal to establish the administrative 

fee in notice and comment rulemaking. 

Commenters stated that this transparent 

process would allow the public to 

evaluate the administrative fee amount 

and provide feedback on the feasibility 

of providers using the Federal IDR 

process. However, several commenters 

opposed the proposal to establish the 

administrative fee amount more or less 

frequently than annually and stated that 

adopting this proposal would introduce 

uncertainty in the Federal IDR process 

and would make budgeting more 

challenging. These commenters 

requested that the Departments update 

the administrative fee annually, to 

balance stability, transparency, and 

responsiveness, which they stated 

would mitigate the impact of changes to 

the administrative fee. One commenter 

supported the proposal to establish the 

administrative fee amount more or less 

frequently than annually, but only if a 

mid-year change led to a decrease to the 

administrative fee amount. Commenters 

also stated that any increases to the 

administrative fee amount should be on 

an annual basis with advance notice to 

interested parties. One of these 

commenters stated that the 

administrative fee amount should be set 

predictably and with at least 90 days’ 

advance notice. Some commenters 

requested further clarification on the 

process for proposing and finalizing 

administrative fee amounts in notice 

and comment rulemaking. 

The Departments agree that one of the 

goals of establishing the administrative 

fee amount in notice and comment 

rulemaking is to foster transparency and 

allow interested parties to provide 

feedback on the methodology and 

process for setting the proposed fee 

amount. The Departments recognize 

commenters’ concerns about 

establishing the administrative fee 

amount more or less frequently than 

annually, and the Departments are 

finalizing a policy under which they 

would establish the administrative fee 

amount no more frequently than once 

per calendar year. In addition, the 

Departments are finalizing as proposed 

the proposal to change the 

administrative fee amount less 

frequently than annually if the 

expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process and the estimated 

total amount of administrative fees paid 

in the upcoming year are estimated to be 

equal. If the Departments determine that 

the estimated total amount of 

administrative fees paid in a future year 

at the current administrative fee amount 

would be less than the expenditures 

estimated to be made by the 

Departments in carrying out the Federal 

IDR process for that year, the 

Departments would propose to raise the 

administrative fee amount in notice and 

comment rulemaking. Alternatively, if 

the Departments determine that the 

estimated total amount of administrative 

fees paid in a future year at the current 

administrative fee amount would be 

more than the expenditures estimated to 

be made in carrying out the Federal IDR 

process for that year, the Departments 

would propose to lower the 

administrative fee amount in notice and 

comment rulemaking. Consistent with 

the statute, the Departments will set the 

administrative fee such that the 

estimated total amount of administrative 

fees paid is equal to the amount of 

expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process.77

The Departments also reiterate that 

using the notice and comment 

rulemaking process to establish the 

administrative fee amount will provide 

interested parties with substantial 

advance notice of fee changes, so 

additional advance notice is not needed. 

As described in the IDR Fees proposed 

rules, the Departments will provide 

details on the methodology used to 

determine the proposed administrative 

fee amount, and the proposed 

administrative fee amount, if finalized, 

would be effective prospectively. 

Interested parties will be provided with 

a period to submit public comments on 

the proposals, and the Departments will 

consider all comments submitted within 

the comment period in developing the 

final rules. 

In addition, other commenters raised 

concerns regarding the amount of the 

administrative fee changing between 

any proposed and final rules. One 

commenter did not support making 

changes to the administrative fee 

amount between the proposed and final 

rules, while another commenter stated 

that any such changes should be by no 

more than 10 percent. 

The Departments acknowledge these 

commenters’ suggestions but note that 

the Departments may have more recent 

data available to estimate the total 

amount of administrative fees paid or 

the amount of expenditures estimated to 

be made by the Departments in carrying 

out the Federal IDR process while 

developing the final rules than they had 

while developing the IDR Fees proposed 

rules, and it is reasonable for the 

Departments to rely on the more recent 

data in developing the final rules, 

provided that they use the methodology 

described in the preamble to the IDR 

Fees proposed rules or a methodology 

modified from the preamble to the IDR 

Fees proposed rules in response to 

comments. As in these final rules, these 

circumstances may result in the 

Departments finalizing a different 

administrative fee amount than the 

amount proposed. The finalized 


khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88501 

78 Id. 

79See 26 CFR 54.9816–8(d)(2)(i), 29 CFR 

2590.716–8(d)(2)(i), and 45 CFR 149.510(d)(2)(i); 

see also section 4.8 of the Federal Independent 

Dispute Resolution (IDR) Process Guidance for 

Certified IDR Entities. October 2022. https://

www.cms.gov/cciio/resources/regulations-andguidance/downloads/federal-independent-disputeresolution-process-guidance-for-certified-idrentities.pdf. 

80Under current guidance, the administrative fee 

may be collected by certified IDR entities up until 

the time the parties submit their offers, and 

therefore the administrative fee is not collected for 

all disputes initiated. See, for example, Centers for 

Medicare & Medicaid Services (March 2023). 

Federal Independent Dispute Resolution (IDR) 

Process Guidance for Certified IDR Entities. https:// 

www.cms.gov/files/document/federal-idr-guidanceidr-entities-march-2023.pdf. 

81Of note, batched disputes and single disputes 

involving air ambulance services also remained 

suspended after October 6, 2023 and would not be 

reflected in the most recent data. 

administrative fee amount will differ 

from the amount proposed, if necessary, 

to comply with the statutory 

requirement that the total administrative 

fees paid are estimated to be equal to the 

amount of expenditures estimated to be 

made by the Departments in carrying 

out the Federal IDR process.78

One commenter was concerned about 

the ability to comment on the 

administrative fee amount rather than 

just the methodology used to calculate 

the amount and stated that only seeking 

comment on the methodology could 

inhibit commenters’ ability to accurately 

express the impact of the proposed fee 

amount on a disputing party’s access to 

the Federal IDR process. 

As previously explained, the 

Departments are finalizing a policy to 

establish the administrative fee amount 

in notice and comment rulemaking no 

more frequently than once per calendar 

year and will provide opportunity for 

comment on any new proposed 

administrative fee amount, as well as 

any changes to the methodology used to 

calculate the administrative fee amount. 

b. Administrative Fee Methodology— 

Estimated Total Number of 

Administrative Fees Paid 

Many commenters opposed the 

Departments’ proposed administrative 

fee methodology for estimating the total 

number of administrative fees to be 

paid. Many commenters suggested that 

estimating the total number of 

administrative fees paid based on the 

projected total number of disputes 

closed would not capture all disputes in 

which administrative fees are paid. 

Some commenters were concerned that 

this methodology could result in an 

overpayment of administrative fees to 

the Departments. One of these 

commenters was concerned that the 

data from the six-month period in 2023 

used to estimate the number of disputes 

closed would be radically different from 

2024 data. Several commenters 

suggested using other metrics to 

calculate the estimated total number of 

administrative fees paid, including the 

number of disputes initiated, the 

number of disputes for which a certified 

IDR entity fee was paid, and the number 

of disputes for which parties submitted 

offers. Moreover, some commenters 

asserted that using disputes closed 

contradicts the Departments’ regulations 

requiring each party to pay the 

administrative fee at the time the 

certified IDR entity is selected and the 

Departments’ guidance permitting 

certified IDR entities to collect the 

administrative fee from parties up to the 

time of offer submission.79

The Departments proposed to use the 

projected total number of disputes 

closed to calculate the administrative 

fee amount because that metric reflected 

collections under current collections 

processes,80 and the Departments were 

of the view that it was a reliable metric 

upon which to base the estimated total 

number of administrative fees to be 

paid. However, after considering the 

comments, the Departments agree with 

the commenters who stated that 

estimating the total number of 

administrative fees paid using the 

projected number of disputes closed 

would not capture all disputes in which 

administrative fees are paid because 

administrative fees may be paid for 

disputes that have not yet been closed. 

To capture all disputes in which parties 

pay administrative fees, the 

Departments are finalizing the 

administrative fee amount based on a 

methodology that estimates the total 

number of administrative fees paid by 

projecting Federal IDR portal data on 

the number of administrative fees paid 

to certified IDR entities, as explained in 

the subsequent paragraphs. The number 

of administrative fees paid to certified 

IDR entities is currently the best 

available metric in the Federal IDR 

portal data to capture all administrative 

fees parties pay for disputes in any stage 

of the Federal IDR process. 

In the preamble to the IDR Fees 

proposed rules, the Departments set the 

administrative fee amount based on the 

projection that 225,000 disputes would 

be closed annually. Because both 

initiating and non-initiating parties to a 

dispute are required to pay the 

administrative fee, the Departments 

estimated in the preamble to the IDR 

Fees proposed rules that 450,000 

administrative fees would be paid 

annually, or 37,500 per month. As 

explained above, in setting the 

administrative fee in these final rules, 

the Departments are using the total 

number of administrative fees paid to 

certified IDR entities for disputes in any 

stage of the Federal IDR process after 

certified IDR entity selection. Using the 

methodology being adopted in these 

final rules, the Departments estimate 

that 492,000 administrative fees will be 

paid annually, or 41,000 administrative 

fees will be paid per month, by the 

parties. The Departments estimate the 

total number of administrative fees paid 

annually based on the monthly average 

number of administrative fees paid to 

certified IDR entities between February 

2023 and July 2023. This monthly 

average was approximately 41,000, and 

the Departments projected this figure 

forward by 12 months to estimate that 

492,000 administrative fees will be paid 

annually. 

The Departments are using data from 

the same time period that was used in 

the IDR Fees proposed rules (February 

2023 to July 2023), without updating to 

newer data. Data from this time period 

remains the best available data to 

project future trends due to portal 

closures and other Federal IDR process 

changes that began in August 2023 due 

to the TMA III and TMA IV opinions 

and orders. While the Departments 

considered using data from the most 

recent six-month period prior to the 

finalization of this rule (June 2023 to 

November 2023), they concluded this 

would inaccurately reflect the monthly 

average number of administrative fees 

paid, as various aspects of the Federal 

IDR process were temporarily 

suspended from August 4, 2023 to 

October 6, 2023 for all disputes.81

The Departments considered 

comments providing alternatives for 

estimating the total number of 

administrative fees paid in calculating 

the administrative fee amount. Some 

commenters wanted the Departments to 

estimate the total number of 

administrative fees paid based on the 

number of disputes initiated. This 

metric is inaccurate for purposes of 

calculating the administrative fee 

amount because the administrative fee 

may not be collected for all disputes 

initiated. The obligation for parties to 

pay the administrative fee attaches at 

the time of certified IDR entity selection 

(with guidance permitting certified IDR 

entities to collect the administrative fee 

from parties until the time of offer 

submission). Therefore, if a dispute is 

withdrawn before selection of the 

certified IDR entity, there is no 

obligation for the parties to pay 


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82 In the IDR Operations proposed rules, the 

Departments proposed to use the total volume of 

disputes projected to be initiated because the 

proposed operational changes in those rules, if 

finalized, would result in the Departments’ 

collection of administrative fees closer to a 

dispute’s date of initiation, and therefore, it may be 

appropriate to estimate the total volume of 

administrative fees paid using the total volume of 

disputes initiated. 88 FR 75793. 

83As explained in these final rules, under current 

processes, the total volume of administrative fees 

paid to certified IDR entities is the best metric to 

use in the administrative fee methodology to align 

with statute requiring the Departments to estimate 

the total number of administrative fees paid. As 

operations of the Federal IDR process improve over 

time, the Departments will consider changes to the 

methodology to best estimate the total number of 

administrative fees paid. 

84Centers for Medicare & Medicaid Services 

(April 27, 2023). Federal Independent Dispute 

Resolution Process—Status Update. https://

www.cms.gov/files/document/federal-idrprocessstatus-update-april-2023.pdf. 

85U.S. Department of Health and Human 

Services, U.S. Department of Labor, U.S. 

Department of the Treasury. Partial Report on the 

Independent Dispute Resolution (IDR) Process 

October 1–December 31, 2022. https://

www.cms.gov/files/document/partial-report-idrprocess-octoberdecember-2022.pdf. 

administrative fees for that dispute. For 

this reason, using the total number of 

disputes initiated to estimate the 

number of administrative fees to be paid 

in the administrative fee methodology 

risks the Departments underfunding the 

Federal IDR process.82

Other commenters requested the 

Departments to estimate the total 

number of administrative fees paid 

based on the number of disputes for 

which a certified IDR entity fee was 

paid. Because parties are not required to 

pay their certified IDR entity fees and 

administrative fees at the same time, the 

number of certified IDR entity fees paid 

would not necessarily reflect the 

number of administrative fees paid. 

Therefore, this metric would also be 

inaccurate for purposes of calculating 

the administrative fee amount. 

Finally, the Departments also 

considered estimating the total number 

of administrative fees paid based on the 

number of disputes for which parties 

submitted offers. However, the 

Departments did not believe this metric 

would accurately reflect the estimated 

number of administrative fees that 

would be paid, since parties may pay 

administrative fees without submitting 

offers. Thus, the metric could understate 

the total number of administrative fees 

paid. 

In summary, the Departments are of 

the view that it is most accurate to use 

the total number of administrative fees 

paid to certified IDR entities in the 

administrative fee methodology rather 

than the other metrics suggested by 

commenters in the prior paragraphs, as 

this metric reflects actual administrative 

fees that have been paid for disputes in 

any stage of the Federal IDR process 

after certified IDR entity selection.83

Therefore, in recognition of 

commenters’ concerns about a 

methodology that could underestimate 

the total number of administrative fees 

paid in 2024, resulting in an 

overestimate of the amount of the 

administrative fee needed for 2024, the 

Departments are establishing the 

administrative fee methodology using 

the total number of administrative fees 

paid to certified IDR entities, rather than 

the total number of closed disputes, to 

estimate the total number of 

administrative fees paid in 2024. 

The Departments also received 

comments regarding the Departments’ 

projections of the total number of closed 

disputes used to estimate the total 

number of administrative fees paid. 

Several commenters suggested that the 

Departments’ estimate of 225,000 closed 

disputes is too low. A few commenters 

suggested that the Departments are 

underestimating utilization of the 

Federal IDR process and recommended 

that the Departments analyze the 

available data from States implementing 

similar policies before the No Surprises 

Act. 

In the IDR Fees proposed rules, the 

Departments estimated that 225,000 

disputes would be closed annually, and 

because both the initiating and noninitiating parties to a dispute are 

required to pay the administrative fee, 

450,000 administrative fees would be 

paid annually. The Departments now 

estimate that 492,000 administrative 

fees will be paid to certified IDR entities 

in the year, as described earlier in this 

preamble section. The Departments 

continue to be of the view that Federal 

IDR process data is the best available 

data to project trends in the Federal IDR 

process, especially because regulations 

and volume differ in State IDR 

processes. As mentioned in the IDR Fees 

proposed rules, the Departments 

initially anticipated 17,333 disputes 

involving non-air ambulance services 

would be initiated during the first year 

of implementation of the Federal IDR 

process. The Departments developed 

this estimate based on the experience of 

New York State. However, the use of 

State data resulted in the Departments 

underestimating utilization of the 

Federal IDR process, as nearly 335,000 

disputes were initiated in the Federal 

IDR process between April 2022 and 

March 2023.84 As demonstrated by this 

result, past data from State processes 

has limited applicability in predicting 

future use of the Federal IDR process. 

For this reason, the Departments are of 

the view that it is better to use Federal 

IDR process data rather than State data 

to estimate the total number of 

administrative fees paid. 

In addition, several commenters 

disagreed with the Departments’ 

assumption of a 25 percent reduction in 

the volume of disputes in estimating the 

total number of administrative fees paid 

to account for the impact of TMA IV’s 

vacatur of batching regulations and 

guidance, or asked for more detail on 

how the projected 25 percent reduction 

factor was determined, including the 

details on how the batching of claims 

will be treated in the future. One 

commenter noted that the vacatur of the 

$350 administrative fee amount and 

batching regulations as a result of TMA 

IV allows many additional claims to 

become economically viable, so the 

Departments should expect dispute 

volume to increase. Another commenter 

stated that the Departments cannot 

know with certainty that the TMA IV 

opinion and order will decrease the 

number of disputes. This commenter 

also asserted that TMA IV did not affect 

the batching criteria that serve as the 

largest obstacle for emergency medicine, 

and therefore there will not be large 

batches in emergency medicine, which 

the commenter noted comprised over 70 

percent of disputes reflected in the 

Partial Report on the Independent 

Dispute Resolution (IDR) Process 

October 1–December 31, 2022.85

Moreover, a few commenters suggested 

that the TMA III opinion and order will 

increase dispute volume as providers 

will continue to see low QPAs from 

plans and issuers and will rely on the 

Federal IDR process for appropriate 

payment. One commenter agreed with 

the Departments’ assumption that the 

TMA IV opinion and order will decrease 

the volume of disputes but disagreed 

with the Departments’ rationale that the 

increased number of line items will take 

more time to close. This commenter 

expected that providers batching claims 

rather than submitting claims 

individually would increase efficiencies 

in the Federal IDR process. 

After reviewing the comments, the 

Departments have reconsidered the 

assumption that the number of disputes 

will decrease by 25 percent as a result 

of TMA IV’s vacatur of batching 

regulations and guidance. Therefore, the 

Departments are not finalizing the 

projected 25 percent reduction in the 

estimated total number of 

administrative fees paid. 

The Departments recognize that 

certain batching criteria remain in place, 


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Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88503 

86U.S. Department of Health and Human 

Services, U.S. Department of Labor, U.S. 

Department of Treasury, Office of Personnel 

Management (October 6, 2023). FAQs about 

Consolidated Appropriations Act, 2021 

Implementation Part 62. https://www.dol.gov/sites/ 

dolgov/files/EBSA/about-ebsa/our-activities/ 

resource-center/faqs/aca-part-62.pdf and https://

www.cms.gov/files/document/faqs-part-62.pdf. 

87 Id. 

88Section 9816(c)(8)(B) of the Code, section 

716(c)(8)(B) of ERISA, and section 2799A–1(c)(8)(B) 

of the PHS Act. 

89 88 FR 65893. 

90As discussed further later in this preamble 

section, the Departments have reconsidered costs 

associated with total estimated expenditures of 

carrying out the Federal IDR process and are 

revising the total estimated expenditures for 2024 

from approximately $70 million to approximately 

$56.6 million. Additionally, certain expenses apply 

across multiple categories that were included in the 

IDR Fees proposed rules. This revised combination 

of categories better provides a meaningful cost 

estimate of these activities. 

91Centers for Medicare & Medicaid Services 

(November 21, 2022). Notice of the Federal 

Independent Dispute Resolution (IDR) Team 

Technical Assistance to Certified Independent 

Dispute Resolution Entities (IDREs) in the Dispute 

Eligibility Determination Process. https://

www.cms.gov/files/document/idre-eligibilitysupport-guidance-11212022-final-updated.pdf. 

such as criteria that impact the batching 

of emergency medicine claims, and 

items and services included in such 

claims will have to be submitted as 

separate disputes if they do not comply 

with the applicable batching criteria.86

Moreover, because the Departments are 

finalizing the administrative fee amount 

based on a methodology that estimates 

the total number of administrative fees 

paid based on the total number of 

administrative fees paid to certified IDR 

entities, rather than the total number of 

closed disputes, the methodology no 

longer requires the Departments to make 

an assumption on whether batched 

disputes will take more time to close 

after the vacatur of the batching 

regulations as a result of TMA IV. In 

addition, the Departments do not have 

data available to support commenters’ 

assertion that TMA III will lead more 

providers to rely on the Federal IDR 

process for appropriate claims payment. 

Plans and issuers are required to 

calculate QPAs using a good faith, 

reasonable interpretation of the 

applicable statutes and regulations that 

remain in effect after the TMA III 

opinion and order.87 Furthermore, in 

their experience operating the Federal 

IDR process, the Departments have not 

seen a clear or quantifiable relationship 

between changes in policy and changes 

in the number of disputes initiated. The 

Departments are of the view that the 

historical data from February 2023 to 

July 2023 is the best available data at 

this time to project utilization of the 

Federal IDR process in 2024, and the 

Departments are therefore finalizing the 

administrative fee amount based on a 

methodology that does not include a 25 

percent reduction in the volume of 

disputes. 

c. Administrative Fee Methodology— 

Estimated Expenditures 

The Departments also received 

comments related to their estimated 

expenditures for purposes of calculating 

the administrative fee amount. Several 

commenters suggested that the 

Departments should disclose more data 

supporting the estimated costs to carry 

out the Federal IDR process in the 

administrative fee methodology to 

provide the public with an opportunity 

to comment. Some of these commenters 

asserted that the IDR Fees proposed 

rules did not provide enough detail on 

the estimated expenditures to allow 

interested parties to provide meaningful 

comment on the proposed 

administrative fee amount. One 

commenter urged the Departments to 

establish a regular process for detailing 

the Departments’ data on the 

administrative fee, including an annual 

disclosure statement with a balance 

sheet, to promote transparency and 

predictability. A few commenters 

disputed the Departments’ reference 

that Freedom of Information Act (FOIA) 

regulations prevent the Departments 

from providing detail on certain 

estimated expenditure amounts. These 

commenters stated that without this 

transparency, interested parties were 

not afforded an opportunity to 

meaningfully comment on the proposals 

related to the administrative fee amount 

and methodology inputs. 

The Departments are finalizing the 

administrative fee amount based on a 

methodology that divides the 

‘‘estimated,’’ rather than ‘‘projected,’’ 

expenditures to carry out the Federal 

IDR process by the estimated total 

number of administrative fees to be paid 

in the year. The use of ‘‘estimated’’ 

rather than ‘‘projected’’ expenditures is 

to ensure the terminology used to 

describe the methodology is consistent 

with that of the statutory text.88 To 

calculate the estimated expenditures to 

carry out the Federal IDR process, the 

Departments included the Federal 

resources needed to carry out the 

Federal IDR process, such as future 

personnel and contract costs. The 

preamble to the IDR Fees proposed rules 

provided an overview of the future 

contract costs and Federal resources 

included in the estimated expenditures 

and explained that the estimated 

expenditures to carry out the Federal 

IDR process in 2024 were approximately 

$70 million. The Departments disagree 

with commenters that the Departments 

did not provide sufficient information to 

allow meaningful comment. In 

particular, in the preamble to the IDR 

Fees proposed rules, the Departments 

provided details on the types of costs 

that are included in the estimated 

expenditures.89

While the Departments described the 

contract costs and Federal resources 

associated with estimated expenditures 

to carry out the Federal IDR process in 

the preamble to the IDR Fees proposed 

rules, in response to comments 

requesting additional specifics on the 

estimated expenditures and in an effort 

to promote transparency, the 

Departments are providing further detail 

on costs included in the total estimated 

expenditures in these final rules within 

the bounds of the Departments’ ability 

to disclose these amounts. To avoid 

releasing sensitive contract information, 

the Departments are breaking down the 

costs, which include the future contract 

and Federal personnel costs, by category 

of expenditure, and providing 

approximate cost estimates for carrying 

out the following categories of Federal 

IDR process activities: 90

• Maintaining, operating, and 

improving the Federal IDR portal, 

certifying IDR entities, and collecting 

data from certified IDR entities 

(approximately $26,360,000); 

• Conducting program integrity 

activities, such as certain QPA audits (as 

further described subsequently in this 

preamble) and IDR decision audits, and 

receiving and investigating Federal IDR 

process-related complaints 

(approximately $13,060,000, of which 

QPA audits resulting from complaints 

filed by providers, facilities, or 

providers of air ambulance services 

comprise approximately $5,000,000); 

• Providing outreach to parties and 

technical assistance to certified IDR 

entities, including assisting with 

eligibility determinations when the 

volume of disputes submitted exceeds 

the capacity of certified IDR entities to 

perform those determinations 

(approximately $11,630,000, of which 

assisting with eligibility determinations 

comprises approximately 

$10,000,000); 91 and 

• Collecting administrative fees 

(approximately $5,530,000), which 

includes costs to invoice certified IDR 

entities for administrative fees collected, 

provide the system infrastructure for 

certified IDR entities to record and remit 

administrative fees collected, track data 

on fees collected and make continuous 

improvements to the collections process 

and invoicing systems. 


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92See, e.g., U.S. Department of Health and 

Human Services, U.S. Department of Labor, U.S. 

Department of the Treasury. Initial Report on the 

Independent Dispute Resolution (IDR) Process April 

15–September 30, 2022. https://www.cms.gov/files/ 

document/initial-report-idr-april-15-september-30- 

2022.pdf. U.S. Department of Health and Human 

Services, U.S. Department of Labor, U.S. 

Department of the Treasury. Partial Report on the 

Independent Dispute Resolution (IDR) Process 

October 1–December 31, 2022. https://

www.cms.gov/files/document/partial-report-idrprocess-octoberdecember-2022.pdf. 

93Available at www.sam.gov. 

94Section 9816(c)(5)(C)(i)(I) of the Code, section 

716(c)(5)(C)(i)(I) of ERISA, and section 2799A– 

1(c)(5)(C)(i)(I) of the PHS Act. 

95Section 9816(a)(2)(A)(i) of the Code, section 

716(a)(2)(A) of ERISA, and section 2799A– 

1(a)(2)(A)(i) of the PHS Act. See also 86 FR 36899. 

However, a provider or facility may always assert 

to the certified IDR entity that additional 

information points in favor of the selection of its 

offer as the out-of-network payment amount, even 

where that offer is for a payment amount that is 

different from the QPA. 87 FR 52627. 

96Section 9816(a)(2)(A)(ii) of the Code, and 

section 2799A–1(a)(2)(A)(ii) of the PHS Act. The 

July 2021 interim final rules describe the 

enforcement responsibilities for each Department 

and OPM. 86 FR 36899 (July 13, 2021). https://

www.federalregister.gov/documents/2021/07/13/ 

2021-14382/requirements-related-to-surprisebilling-part-i. 

97The accuracy of a plan’s or issuer’s QPA (or 

QPA methodology) may not be reviewed within a 

payment determination under the Federal IDR 

process. See 86 FR 55996. 

98Section 9816(c)(5)(C)(i)(I) of the Code, section 

716(c)(5)(C)(i)(I) of ERISA, and section 2799A– 

1(c)(5)(C)(i)(I) of the PHS Act. 

The Departments are publishing 

summary-level estimated budget 

information and have provided 

meaningful data for public input for the 

purposes of calculating the 

administrative fee amount. The 

Departments intend to continue to 

provide data on the Federal IDR process 

to promote transparency and 

predictability in the administrative fee 

amount, including publishing quarterly 

public reports with the Departments’ 

expenditures and administrative fee 

collections.92

In response to commenters’ concerns 

regarding the Departments’ reference to 

the applicability of FOIA exemptions to 

information shared during the 

rulemaking process, the Departments 

clarify that they will disclose 

information in response to any requests 

in accordance with the FOIA and 

accompanying regulations. However, 

the Departments are not publishing 

specific future contract estimates in this 

rule in response to commenters’ 

requests for more detail on estimated 

expenditures of Federal IDR process 

activities and the data underlying those 

estimates because publishing those 

contract estimates could undermine 

future contract procurements. For 

example, if the Departments were to 

publish the projected future cost of the 

contracts used to maintain the Federal 

IDR portal, the Federal Government 

would be meaningfully disadvantaged 

in future contract negotiations related to 

the Federal IDR portal, as bidders would 

know how much the Departments 

anticipate such a future contract being 

worth. Although current contract 

awards are published and publicly 

available,93 these award amounts do not 

necessarily reflect the future value of 

the contract, as there may be future 

changes in policy and operations and 

the scope of work. 

The Departments are of the view that 

interested parties had sufficient 

information to meaningfully comment 

on the IDR Fees proposed rules. For 

example, commenters provided valuable 

information in their comments 

regarding how the Departments should 

estimate the total number of 

administrative fees paid. Based on these 

comments, the Departments modified 

the methodology accordingly. Similarly, 

the Departments provided detailed 

information in the IDR Fees proposed 

rules on their calculation of the 

estimated expenditures to carry out the 

Federal IDR process. Specifically, the 

Departments detailed the types of 

activities included in estimating the 

annual expenditures of approximately 

$70 million and received comments on 

these activities. After considering 

comments received on these details of 

the administrative fee methodology, the 

Departments have revised this estimate 

of annual expenditures down to 

approximately $56.6 million, as 

explained in later paragraphs. 

In addition, many commenters raised 

concerns about the inclusion of certain 

types of expenses in the administrative 

fee methodology. Several commenters 

recommended excluding all or some of 

the QPA audit costs given that the QPA 

also serves a purpose outside of the 

Federal IDR process in calculating 

patient cost sharing. Some commenters 

asked the Departments to disclose their 

total expenditures on QPA audits and 

the portion proposed to be funded by 

administrative fees compared to other 

sources. 

As previously mentioned, the 

Departments are required to include 

estimated expenditures to carry out the 

Federal IDR process, which include 

contract costs and Federal resources, in 

calculating the administrative fee 

amount. Accordingly, the Departments 

disagree with commenters who 

suggested that QPA audit costs should 

not be included in the calculation of the 

administrative fee amount and are 

adopting an administrative fee 

methodology that includes certain QPA 

audit costs in the estimated 

expenditures. For any dispute in the 

Federal IDR process, a plan or issuer 

would have been required to disclose 

the QPA to the provider along with the 

initial payment or notice of denial of 

payment for items and services, and 

disputing parties must include the QPA 

for items and services when initiating a 

dispute. Certified IDR entities are 

required to consider the QPA when 

selecting between the offers submitted 

by disputing parties when determining 

the total out-of-network payment rate 

for items and services subject to the 

Federal IDR process.94

Furthermore, it is the responsibility of 

the Departments (or the applicable State 

authorities), rather than the provider, 

facility, provider of air ambulance 

services, or the certified IDR entity, to 

monitor plan and issuer compliance 

with the QPA requirements.95 To date, 

the Departments have only conducted 

audits as part of investigations of 

complaints, and anticipate continuing to 

conduct these risk-based audits in the 

future, though the No Surprises Act 

permits the Departments to conduct 

random and risk-based audits.96 Given 

the role of the QPA in the Federal IDR 

process and the direct impact on 

providers, performing audits on plans 

and issuers in response to allegations 

that the plan’s or issuer’s QPAs are 

inaccurate is necessary to carry out the 

Federal IDR process and promotes the 

integrity of and confidence in the 

Federal IDR process. 

Moreover, addressing concerns about 

inaccurately calculated QPAs helps to 

ensure plans and issuers provide 

correctly calculated QPAs when they 

participate in the Federal IDR process. 

For example, in the absence of QPA 

audits to investigate complaints from 

providers, facilities, and providers of air 

ambulance services that one or more of 

a plan’s or issuer’s QPAs are inaccurate, 

plan and issuer compliance with QPA 

requirements would go unchecked.97

Certified IDR entities must consider the 

relevant QPA in making each payment 

determination under the No Surprises 

Act,98 and unchecked QPAs would 

significantly threaten the integrity of 

QPAs and the payment determinations 

made by certified IDR entities. These 

audits help to increase transparency 

into the QPA calculation methodology 

and encourage compliance among plans 

and issuers. Accordingly, QPA audits 

are an integral part of the Federal IDR 

process, the costs of which are 

reasonably included in the calculation 

of the administrative fee amount. 


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99Centers for Medicare & Medicaid Services 

(November 21, 2022). Notice of the Federal 

Independent Dispute Resolution (IDR) Team 

Technical Assistance to Certified Independent 

Dispute Resolution Entities (IDREs) in the Dispute 

Eligibility Determination Process. https://

www.cms.gov/files/document/idre-eligibilitysupport-guidance-11212022-final-updated.pdf. 

100The Departments are providing technical 

assistance regarding eligibility but are not making 

eligibility determinations, as, under current 

regulations, only certified IDR entities may make 

eligibility determinations. Id. 

101 88 FR 75744. 

In estimating the expenditures to 

carry out the Federal IDR process, the 

Departments are including estimated 

costs only for certain QPA audits that 

the Departments anticipate incurring to 

investigate complaints regarding 

inaccurate QPAs made by providers, 

facilities, and providers of air 

ambulance services under the Federal 

IDR process. The Departments are not 

including the costs of QPA audits 

conducted: (1) in connection with 

Department of Labor, OPM, or 

Department of the Treasury 

investigations; (2) randomly; or (3) in 

response to complaints from consumers, 

as not all of these audits are necessarily 

related to the Federal IDR process. The 

Departments are of the view that only 

the costs related to QPA audits 

conducted in response to complaints 

from entities that are potential parties to 

a payment determination are 

sufficiently related to the Federal IDR 

process to justify their inclusion in the 

administrative fee calculation. For 

example, consumers who complain that 

a plan or issuer inaccurately calculated 

their cost sharing based on an 

erroneously calculated QPA will not be 

involved in the Federal IDR process, 

and therefore the costs of such audits 

are appropriately excluded from those 

costs supported by administrative fees 

paid by parties to the Federal IDR 

process. Because HHS is primarily 

responsible for the implementation of 

the Federal IDR process, the 

Departments view similarly random 

QPA audits that may be conducted by 

the Departments, as well as any QPA 

audits in connection with Department of 

Labor, OPM, and Department of the 

Treasury investigations. 

The costs of HHS conducting QPA 

audits for complaints that a plan’s or 

issuer’s QPAs are inaccurate are 

estimated to be approximately 

$5,000,000 in 2024. As plans and 

issuers improve their compliance in 

calculating QPAs correctly, the 

Departments anticipate that the costs of 

conducting these audits will decrease, 

which would be reflected in the 

estimated expenditures used to 

determine future administrative fee 

amounts. 

Several commenters also disagreed 

with including costs associated with 

assisting with eligibility reviews in the 

estimated expenditures to carry out the 

Federal IDR process. A few of these 

commenters noted that certified IDR 

entities are responsible for conducting 

eligibility reviews and therefore 

certified IDR entity fees should cover 

this cost. Some commenters asserted 

that such costs should be recovered 

through the non-prevailing party’s 

certified IDR entity fee, as the eligibility 

determination is part of the payment 

determination. One of these commenters 

expressed concern that including this 

expense would incentivize certified IDR 

entities to understaff as HHS would 

intervene to address a staffing shortage. 

The Departments disagree that the 

costs of assisting with eligibility 

determinations should be excluded from 

estimated expenditures. Certified IDR 

entities voluntarily participate in the 

Federal IDR process and set their 

certified IDR entity fees within ranges 

established by the Departments to 

ensure they remain financially viable 

and that such fees can cover their 

operating expenses to participate in the 

Federal IDR process, which include the 

costs incurred in determining the 

eligibility of items and services for the 

Federal IDR process. While certified IDR 

entities are responsible for making 

eligibility determinations, and therefore 

incur costs associated with this activity, 

the Departments have also incurred 

costs since November 2022 to assist 

certified IDR entities in making these 

determinations by performing research 

and outreach on disputes pending 

eligibility determinations, including 

identifying and obtaining information 

necessary for certified IDR entities to 

make eligibility determinations, and 

will continue to incur such costs in 

2024.99 The Departments disagree with 

the commenter that stated that the 

Departments’ assistance would 

incentivize certified IDR entities to 

understaff. Certified IDR entities could 

not have reasonably predicted the 

amount of personnel they would need to 

make eligibility determinations within 

the required timeframe given the 

extremely high volume of disputes. 

Moreover, it has been difficult for 

certified IDR entities to make staffing 

adjustments in response to utilization of 

the Federal IDR process due to the 

repeated temporary pauses in the 

Federal IDR portal resulting from 

litigation matters and changes in 

operations. 

When the Departments first 

developed the Federal IDR process and 

the rules and guidance establishing how 

certified IDR entities were to calculate 

their fees for the scope of work they 

were expected to perform, the 

Departments and the certified IDR 

entities did not anticipate the significant 

difficulty and costs involved in 

determining eligibility for the Federal 

IDR process. After six months of 

operating the Federal IDR process and 

receiving feedback from disputing 

parties and certified IDR entities, the 

Departments determined that it was 

necessary to assist certified IDR entities 

with determining eligibility through 

performing research and outreach on 

disputes pending eligibility 

determinations, including identifying 

and obtaining information necessary to 

make an eligibility determination.100

The Departments determined that this 

course of action was necessary when it 

became clear that eligibility 

determinations were taking significantly 

longer than the Departments had 

anticipated. 

In the IDR Operations proposed rules, 

the Departments proposed several 

policies aimed at improving 

communication between the parties that 

would make eligibility determinations 

less burdensome for certified IDR 

entities and speed up the Federal IDR 

process, as well as allow the 

Departments to make eligibility 

determinations under extenuating 

circumstances.101 However, these 

policies, if finalized, will take time to 

implement. In the interim, the 

Departments are working to balance 

feedback from interested parties asking 

the Departments to increase the 

efficiency of the Federal IDR process 

and decrease the backlog of disputes 

with other feedback asking the 

Departments to minimize expenditures 

and avoid increases to the 

administrative fee. The Departments 

have also received comments urging 

them to shorten the time it takes for 

payment determinations to be reached. 

The Departments continue to believe 

that some level of assistance is 

necessary to address the high volume of 

disputes submitted and the backlog of 

disputes, due in part to the closing and 

reopening of the Federal IDR process to 

make necessary systems updates in light 

of the TMA III and TMA IV opinion and 

orders. 

However, after reviewing comments, 

the Departments have reconsidered the 

amount of estimated costs associated 

with pre-eligibility reviews that should 

be included in the estimated 

expenditures to carry out the Federal 

IDR process in calendar year 2024. In 

estimating the expenditures of 

approximately $70 million in the IDR 


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102While there is an implementation 

appropriation, the initial appropriation of $500 

million in the CAA is finite and only remains 

available until expended through 2024. Moreover, 

the Departments note that additional mandatory 

funding for the Federal IDR process has not been 

appropriated beyond the initial $500 million made 

available in the CAA. However, the Departments 

cannot rely on budget requests or on appropriations 

enacted by Congress when calculating this fee. The 

statute requires the fee to be set at an amount such 

that the total amount of fees paid is estimated to 

be equal to the amount of expenditures estimated 

to be made by the Departments in carrying out the 

Federal IDR process. 

103Section 9816(c)(6) of the Code, section 

716(c)(6) of ERISA, and section 2799A–1(c)(6) of the 

PHS Act. 

104While there is an implementation 

appropriation, the initial appropriation of $500 

million in the CAA is finite and only remains 

available until expended through 2024. Moreover, 

the Departments note that additional mandatory 

funding for the Federal IDR process has not been 

appropriated beyond the initial $500 million made 

available in the CAA. The Departments are unable 

to appropriate this funding themselves, although 

they have made numerous requests to Congress for 

additional funding, and therefore this is not a 

reliable source of Federal IDR process funding. 

105Section 9816(c)(8)(A) of the Code, section 

716(c)(8)(A) of ERISA, and section 2799A–1(c)(8)(A) 

of the PHS Act. 

106As previously explained in the preamble to 

these final rules, the Departments may conduct 

random or risk-based QPA audits. The Departments 

consider it appropriate to include some of the costs 

of conducting risk-based QPA audits resulting from 

complaints filed by providers, facilities, or 

providers of air ambulance services alleging that the 

QPA was inaccurate as expenditures made in 

carrying out the Federal IDR process, and therefore 

include the costs of conducting these audits in 

Fees proposed rules, the Departments 

included an increase in costs to reflect 

the Departments taking on a greater role 

in assisting with eligibility 

determinations to improve the 

efficiency of the Federal IDR process.102

Based on comments received urging the 

Departments to avoid increasing the 

administrative fee, the Departments will 

not take on a greater role in broadly 

assisting certified IDR entities with 

eligibility determinations at this time. 

Instead, the Departments will limit their 

assistance with eligibility 

determinations to more complex 

disputes, such as disputes where there 

is missing information to determine 

Federal versus State jurisdictions in a 

State with a specified State law. This 

approach will ensure efficient use of the 

Departments’ resources by leveraging 

the Departments’ assistance and 

expertise in handling pre-eligibility 

reviews for disputes that certified IDR 

entities may need to spend more time 

on, such as disputes for which 

information was limited due to the 

systems in place when those disputes 

were initiated, and will allow certified 

IDR entities to focus on moving disputes 

through the Federal IDR process. 

Furthermore, this will allow the 

Departments to keep the costs of 

assisting with eligibility determinations 

lower in 2024 such that the 

expenditures estimated to be made by 

the Departments to carry out the Federal 

IDR process are now estimated to be 

approximately $56.6 million in 2024. 

The total estimated expenditures in the 

IDR Fees proposed rules included 

approximately $20 million for the 

Departments to assist with eligibility 

determinations via conducting research 

and outreach. The estimated cost of 

assisting with eligibility determinations 

in 2024, as used to calculate the 

administrative fee as finalized, is 

approximately $10 million. 

Furthermore, the Departments do not 

anticipate that the decision to focus 

their assistance with pre-eligibility 

reviews on more complex disputes and 

the revised administrative fee amount 

finalized in these rules will impact the 

fees certified IDR entities choose to 

charge. Given the backlog of disputes, 

utilization of the Federal IDR process 

strains the current capacity of certified 

IDR entities to make timely 

determinations. While the Departments’ 

assistance with eligibility 

determinations is currently helping to 

alleviate the backlog of disputes, 

certified IDR entities’ operating 

expenses are not expected to decrease as 

a result. If the Departments are able to 

decrease their assistance with eligibility 

determinations, the costs of preeligibility reviews would decrease, 

which would be reflected in the 

estimated expenditures used to 

determine future administrative fee 

amounts. 

In addition, some commenters 

disagreed with including the costs of 

investigating complaints of noncompliance in the administrative fee 

methodology. Commenters asked for 

clarity in the ‘‘investigating relevant 

complaints’’ expense and asserted that 

‘‘relevant’’ complaints beyond the 

Federal IDR process would be 

inappropriate to include in the 

calculation of the administrative fee 

amount. A few of these commenters 

suggested that the party found to be 

non-compliant should bear the costs of 

the investigation and asked the 

Departments to publicly report 

summary data on these investigations 

and the costs covered by non-compliant 

parties compared to those covered by 

administrative fees. One commenter 

suggested that the investigation of 

complaints related to violations of the 

No Surprises Act should be funded by 

a congressional appropriation as these 

are largely unrelated to the Federal IDR 

process. 

The Departments clarify that the 

complaints costs included in the 

estimated expenditures in the 

administrative fee methodology only 

include costs associated with receiving 

and investigating Federal IDR processrelated complaints. For example, such 

costs include investigating complaints 

within the Departments’ jurisdiction 

regarding the failure of a non-prevailing 

party to pay the payment determination 

amount to the prevailing party within 

30 days of the certified IDR entity’s 

payment determination as required by 

the No Surprises Act.103 Complaints 

costs do not include costs for 

complaints that are not related to the 

Federal IDR process, such as those 

related to the QPA for patient cost 

sharing. Therefore, the Departments are 

of the view that those costs are 

appropriate to include in the 

administrative fee methodology and are 

necessary to ensure compliance with the 

Federal IDR process.104

Many commenters suggested that the 

Departments consider other funding 

sources besides the administrative fee to 

fund expenditures. Several commenters 

suggested that implementing penalties 

could help fund expenditures, including 

penalties for submitting ineligible 

disputes, failing to comply with 

disclosure obligations, or delaying the 

Federal IDR process. Some commenters 

suggested the CAA’s $500 million 

appropriation to implement the No 

Surprises Act should cover at least a 

portion of the Departments’ estimated 

expenditures. One commenter asked for 

confirmation that the implementation 

appropriation has been exhausted fully 

and suggested requesting additional 

funds from Congress in upcoming 

budget requests to support the funding 

of the Departments’ ongoing 

implementation. Another commenter 

asserted that the administrative fee 

methodology set forth in the IDR Fees 

proposed rules did not take into account 

any appropriations funding. 

As required by the No Surprises 

Act,105 both parties to a dispute must 

pay an administrative fee for 

participating in the Federal IDR process. 

By statute, the administrative fee 

amount must be calculated such that the 

total amount of fees paid for a year is 

estimated to be equal to the amount of 

expenditures estimated to be made by 

the Departments for such year in 

carrying out the Federal IDR process. 

While the CAA appropriated $500 

million to remain available until 

expended through 2024 for preparing 

regulations, guidance, and reports, 

collecting data, conducting audits and 

enforcement activities,106 and 


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estimating the expenditures made by the 

Departments in carrying out the Federal IDR 

process. Other audit costs, such as the QPA audits 

conducted in connection with Department of Labor, 

OPM, or Department of Treasury investigations; 

audits conducted randomly; or audits conducted in 

response to complaints from consumers regarding 

QPAs may be funded using other appropriations, as 

applicable. 107 88 FR 75744. 

establishing and initially implementing 

the No Surprises Act and Title II 

Transparency provisions through 

calendar year 2024, this finite 

appropriation is not solely for the 

Federal IDR process. Additionally, 

while the Fiscal Year 2024 President’s 

budget included another $500 million 

appropriation request for the continued 

implementation of the No Surprises Act 

and Title II Transparency provisions, 

the administrative fee amount finalized 

in these rules must still be consistent 

with the statutory requirement to set the 

administrative fee amount such that the 

total amount of administrative fees paid 

is estimated to be equal to the amount 

of expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process. As a result, when 

calculating this fee, the Departments 

cannot rely on budget requests or on 

appropriations enacted by Congress. 

In addition, commenters urged the 

Departments to consider strategies to 

decrease utilization of the Federal IDR 

process, decrease administrative 

burden, increase the efficiency of the 

Federal IDR process, and ultimately 

reduce the cost of administering the 

Federal IDR process. Examples of 

commenters’ suggestions include 

enforcing disclosure requirements, 

requiring plans and issuers to include 

remittance advance remark codes 

(RARCs) at the time of initial claim 

determination, easing batching 

requirements, disincentivizing bad faith 

conduct, making improvements to the 

Federal IDR portal, and implementing a 

required initial payment amount for outof-network emergency services. Several 

commenters suggested that the volume 

of ineligible disputes and the cost of 

conducting eligibility reviews would be 

reduced or eliminated if the 

Departments enforced disclosure 

requirements or required plans and 

issuers to provide adequate information 

for providers to determine whether a 

claim is eligible for the Federal IDR 

process. One commenter suggested that 

plans and issuers should cover the cost 

of eligibility reviews when they fail to 

inform the provider of eligibility for the 

Federal IDR process. Another 

commenter suggested that the cost of 

eligibility reviews should be assessed to 

the party that challenges eligibility as 

this cost would be avoidable if the plan 

or issuer provided sufficient 

information. One commenter suggested 

that the Departments could reduce the 

administrative burden of the Federal 

IDR process by contracting with an 

established claims processing 

clearinghouse that currently possesses 

the capabilities to perform real-time 

eligibility determinations to create an 

in-portal eligibility validation process. 

The Departments continue to consider 

improvements to the Federal IDR 

process and recently published the IDR 

Operations proposed rules,107 which 

include policies aimed at reducing the 

volume of ineligible disputes, 

establishing additional disclosure 

requirements (such as requiring plans 

and issuers to use approved claim 

adjustment reason codes (CARCs) and 

RARCs), incentivizing good faith 

conduct with respect to open 

negotiation and exchange of 

information, and otherwise improving 

the Federal IDR process. Overall, these 

policies would, if finalized, support 

efficiency in Federal IDR process 

operations and reduce the cost of 

administering the Federal IDR process 

in the future. 

Recognizing that the cost of certifying 

IDR entities is included in the 

administrative fee methodology, one 

commenter sought clarity on how the 

methodology considers efficiencies 

gained from certifying more IDR entities 

to make payment determinations and 

therefore reduce the backlog. 

The Departments note that the 

benefits of certifying new IDR entities 

will be achieved over time, as new 

certified IDR entities acclimate to the 

process and increase the speed at which 

they move disputes through the Federal 

IDR process. As efficiencies in the 

Federal IDR process are adopted over 

time, the expenditures required to carry 

out the Federal IDR process could 

decrease, exerting downwards pressure 

on the administrative fee amount. If any 

of these situations results in changes to 

the data used to calculate the 

administrative fee amount, the 

Departments intend to take these 

changes into consideration when 

establishing the administrative fee 

amount in the future. 

d. Administrative Fee Methodology— 

Other Comments 

The Departments sought comments on 

whether, when calculating the 

administrative fee amount in future 

years, they should apply an inflationary 

adjustment, such as the consumer price 

index for all urban consumers (CPI–U), 

to the amount of estimated expenditures 

to be made by the Departments in 

carrying out the Federal IDR process. A 

few commenters supported using an 

inflationary adjustment, such as the 

CPI–U, to adjust the administrative fee 

amount in future years. Other 

commenters opposed this approach, 

stating that it would not necessarily 

correlate with the Departments’ 

expenditures to operate the Federal IDR 

process and may not align with the 

established methodology of dividing the 

Departments’ estimated expenditures by 

the estimated total number of 

administrative fees to be paid. Another 

commenter stated that this proposal 

would be unnecessary if the 

Departments finalize the proposal to 

establish the administrative fee amount 

more or less frequently than annually. 

Finally, another commenter asked the 

Departments to revisit this proposal 

when data are more predictable after 

implementing planned improvements to 

the Federal IDR process. 

Upon consideration of the comments, 

the Departments are not finalizing the 

use of an inflationary adjustment, such 

as the CPI–U, to adjust the 

administrative fee amount in future 

years. The Departments agree with 

commenters that the CPI–U may not 

correlate with projected increases in the 

Departments’ estimated expenditures to 

carry out the Federal IDR process and 

therefore using it could be inconsistent 

with the statute. 

Several commenters urged the 

Departments to improve the Federal IDR 

process before increasing the 

administrative fee amount by decreasing 

the backlog, enforcing timely payment, 

and holding all parties accountable to 

the regulatory requirements. Some 

commenters recommended maintaining 

the current administrative fee amount 

until there is stability in the Federal IDR 

process and more data are available to 

accurately forecast long-term costs. A 

few commenters suggested that the 

Departments modify the administrative 

fee amount in future years to make up 

for any shortfall or surplus created by 

the finalized administrative fee amount. 

As previously mentioned, the 

Departments continue to consider 

improvements to the Federal IDR 

process; however, implementing these 

improvements would increase the costs 

of carrying out the Federal IDR process 

in the short term and would take time 

to operationalize. As previously 

mentioned, the Departments proposed 

policies in the IDR Operations proposed 

rules aimed to improve the overall 

efficiency and operations of the Federal 


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108 88 FR 75744. 

109Section 9816(c)(8)(B) of the Code, section 

716(c)(8)(B) of ERISA, and section 2799A–1(c)(8)(B) 

of the PHS Act. 

110 88 FR 75799. 

111 88 FR 75800. 

112 88 FR 75783 through 75791. 

113 88 FR 75799. 

IDR process.108 The Departments were 

unable to propose those policies in the 

IDR Fees proposed rules because they 

are much more comprehensive than the 

fee-related policies proposed in the IDR 

Fees proposed rules and would require 

more time to develop and implement, if 

finalized. There is an urgency to publish 

these final rules due to the need to 

sufficiently fund the Federal IDR 

process in 2024, because, as explained 

above, the current $50 administrative 

fee amount is insufficient to provide 

total administrative fees that are 

estimated to be equal to the 

expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process, as required by the 

No Surprises Act.109

e. Administrative Fee Amount and 

Impact 

Many commenters opposed the 

proposed $150 per party per dispute 

administrative fee amount and stated 

that it would make the Federal IDR 

process cost-prohibitive to pursue for 

many providers, especially small 

providers, rural providers, independent 

practices, and certain medical 

specialties, such as psychiatry, 

emergency medicine, radiology, and 

anesthesiology. Some commenters 

requested that the Departments analyze 

how the proposed administrative fee 

amount would be cost-prohibitive for 

providers and would deter and limit 

dispute resolution for small providers. 

A few commenters asserted that the 

administrative fee amount would 

unfairly favor plans and issuers over 

providers in the Federal IDR process. 

One commenter recommended against 

using a methodology to calculate the 

administrative fee amount that did not 

consider the increased financial burdens 

on providers compared to plans and 

issuers. Another commenter stated that 

the proposed administrative fee amount 

prioritizes the interest of certified IDR 

entities and the Departments in covering 

their costs at the expense of parties’ 

access to the Federal IDR process. 

Similarly, some commenters stressed 

that it is important to keep the 

administrative fee amount low to 

prevent the administrative fee from 

serving as a de facto barrier to the 

Federal IDR process. These commenters 

asserted that such a de facto barrier 

would not align with congressional 

intent, as Congress decided against 

adding a dollar-value threshold to the 

No Surprises Act despite considering 

this while developing the legislation. 

Several commenters raised concerns 

that reducing access to the Federal IDR 

process would reduce providers’ 

reimbursements for out-of-network 

services, as it would not be costeffective to dispute certain payment 

amounts in the Federal IDR process. 

Some commenters asserted that a costprohibitive administrative fee amount 

would reduce incentives for plans and 

issuers to negotiate fair in-network 

contracts or, in some cases, renew 

contracts, forcing providers out of 

networks. 

A few commenters suggested that 

patients would also be impacted by the 

increased administrative fee amount, 

either through plans and issuers 

narrowing provider networks or 

increasing premiums and cost-sharing 

amounts, or providers passing on costs 

to patients or going out of business. 

However, several commenters noted 

that the proposed fee amount was an 

improvement from the previous $350 

amount. 

For reasons described throughout this 

preamble, the Departments are 

finalizing the administrative fee amount 

for disputes initiated on or after the 

effective date of these rules as $115 per 

party per dispute. This change in the 

administrative fee amount between the 

proposed and final rules reflects 

modifications to the estimated 

expenditures and to the administrative 

fee methodology described elsewhere in 

this preamble. 

While the Departments are statutorily 

required to set the administrative fee 

amount such that the total amount of 

administrative fees paid is estimated to 

be equal to the amount of expenditures 

estimated to be made by the 

Departments in carrying out the Federal 

IDR process, the Departments 

acknowledge the concerns of 

commenters related to accessibility and 

affordability of the Federal IDR process 

and the impact of the proposed 

administrative fee amount on the parties 

and patients. In the Departments’ effort 

to balance their statutory obligations 

with the priority of ensuring equitable 

access for parties to engage in the 

Federal IDR process, the Departments 

proposed in the IDR Operations 

proposed rules to reduce the 

administrative fee amount in certain 

circumstances. In the IDR Operations 

proposed rules, the Departments 

proposed to reduce the administrative 

fee amount to $75 (50 percent of the full 

administrative fee amount proposed in 

those proposed rules) for both parties 

when the highest offer by either party in 

open negotiation was less than the full 

administrative fee amount ($150 as 

proposed in those proposed rules) 110

and to $30 (20 percent of the full 

administrative fee amount proposed in 

those proposed rules) for non-initiating 

parties in ineligible disputes.111 The 

Departments also proposed in the IDR 

Operations proposed rules to revise the 

requirements for batching qualified IDR 

items and services together into a single 

Federal IDR process dispute.112 The 

Departments anticipate that these 

proposals would make the Federal IDR 

process more accessible for all parties, 

but especially the parties for whom 

commenters expressed concerns, such 

as small and rural providers and certain 

medical specialties. 

The administrative fee amount being 

finalized in these final rules is applied 

equally to both parties to a dispute. The 

Departments are of the view that it 

would be inequitable to charge a smaller 

party a lower administrative fee, 

because a dispute initiated by a smaller 

party costs the Departments the same 

amount to process as a dispute initiated 

by a larger party. Furthermore, the value 

of a dispute, rather than the size of the 

party, determines whether it will be 

cost-effective for the party to pursue the 

dispute. For example, a smaller party 

could initiate a high dollar value 

dispute, while a larger party could 

initiate a small dollar value dispute. The 

Departments proposed in the IDR 

Operations proposed rules to charge 

both parties a reduced administrative 

fee when the highest offer made during 

open negotiation is less than the full 

administrative fee amount,113 which is 

intended to improve the accessibility of 

the Federal IDR process for parties to 

low-dollar disputes. The Departments 

anticipate that such parties may be 

smaller providers and facilities or 

independent practices. However, larger 

parties to low-dollar disputes would not 

be precluded from paying the reduced 

administrative fee as long as the dispute 

meets the aforementioned requirement. 

The Departments considered the 

impact of the proposed $150 

administrative fee amount on the parties 

compared to the current $50 

administrative fee amount and the 

previous $350 administrative fee 

amount. While the Departments 

understand that it may be economically 

infeasible to initiate some claims in the 

Federal IDR process due to the 

administrative and certified IDR entity 

fees associated with accessing the 

process, as discussed previously, the 

Departments are statutorily obligated to 


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114Section 9816(c)(8)(B) of the Code, section 

716(c)(8)(B) of ERISA, and section 2799A–1(c)(8)(B) 

of the PHS Act. 

115Section 9816(c)(8)(A) of the Code, section 

716(c)(8)(A) of ERISA, and section 2799A–1(c)(8)(A) 

of the PHS Act. 

116Section 9816(c)(8)(B) of the Code, section 

716(c)(8)(B) of ERISA, and section 2799A–1(c)(8)(B) 

of the PHS Act. 117 88 FR 75744. 

118 88 FR 75744. 

119On November 28, 2023, the Departments 

released FAQs pertaining to batching that will be 

effective until the IDR Operations proposed rules 

are finalized and take effect. These FAQs discuss 

how, in light of the TMA IV and TMA III opinions 

and orders, the batching requirements of the No 

Surprises Act apply to qualified IDR items and 

services for disputes eligible for initiation of the 

Federal IDR process on or after August 3, 2023, 

until the Departments engage in future notice and 

comment rulemaking. See U.S. Department of 

Health and Human Services, U.S. Department of 

Labor, U.S. Department of Treasury, Office of 

Personnel Management (November 28, 2023), FAQs 

about Consolidated Appropriations Act, 2021 

Implementation Part 63, available at https://

www.cms.gov/files/document/faqs-part-63.pdf. 

120 Id. 

121As discussed earlier in this preamble section, 

the Departments were unable to propose these 

operational policies in the IDR Fees proposed rules 

because they are more comprehensive than the feerelated policies proposed in the IDR Fees proposed 

rules and require more time to develop and 

Continued 

charge an administrative fee amount 

such that the administrative fees paid 

are estimated to be equal to the amount 

of expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process.114 The 

methodology used by the Departments 

is derived from this statutory language. 

Congress did not include a dollarvalue threshold for Federal IDR process 

disputes in the No Surprises Act. 

Rather, Congress opted to include a 

requirement in the No Surprises Act for 

each party to a dispute for which a 

certified IDR entity is selected to pay to 

the Departments, at such time and in 

such manner as specified by the 

Departments, a fee for participating in 

the Federal IDR process.115 Therefore, 

regardless of the administrative fee 

amount, disputing parties must always 

evaluate whether it would be 

economically efficient to initiate a 

dispute in the Federal IDR process. 

Congress also provided in the No 

Surprises Act that the administrative fee 

amount is established by the 

Departments in a manner such that the 

total amount of fees paid for such year 

is estimated to be equal to the amount 

of expenditures estimated to be made by 

the Departments for such year in 

carrying out the Federal IDR process.116

In regard to comments stating that the 

administrative fee could result in 

narrowing networks, many factors may 

impact whether a provider, facility, or 

provider of air ambulance services and 

a plan or issuer will enter a network 

agreement with one another, including 

the market power of each party, Federal 

and State network adequacy laws, and 

other factors. The Departments 

acknowledge that the amount paid for 

out-of-network services is one of the 

factors that impacts market participants’ 

decisions whether to enter network 

agreements. The No Surprises Act 

represents a substantial change to the 

way the parties come to agreement on 

payment for out-of-network services by 

prohibiting, in many circumstances, the 

practice of sending surprise medical 

bills to patients and establishing a 

Federal IDR process for determining the 

appropriate out-of-network rate. Many 

providers report that initial payments 

made by plans and issuers for out-ofnetwork services are now substantially 

lower than such payments were before 

enactment of the No Surprises Act. 

Some providers report that plans’ and 

issuers’ abilities to make lower 

payments for out-of-network services 

has impacted their willingness to offer 

acceptable in-network payment rates in 

network agreement negotiations. To the 

extent that the Federal IDR process and 

the prohibition on surprise medical 

billing change this equilibrium among 

parties, they could impact the number 

of providers and plans and issuers that 

are able to agree on terms for entering 

a network agreement and consequently 

network breadth. 

In the IDR Operations proposed rules, 

the Departments are proposing a 

number of steps to accelerate 

throughput in the Federal IDR 

process,117 which would make it easier 

for the parties to use the process to 

determine the appropriate payment 

amount for out-of-network services. 

That said, the appropriate payment rate 

for out-of-network services is only one 

factor among many that influences 

network breadth. It is also important for 

the parties to meaningfully engage in 

open negotiation to determine an 

appropriate out-of-network payment 

rate, since agreeing to rates in open 

negotiation allow the parties to avoid 

the costs of using the Federal IDR 

process. Even as the Federal IDR process 

becomes faster and more parties avail 

themselves of the opportunity to agree 

to out-of-network payment rates during 

the open negotiation period, the price 

paid for out-of-network services will 

remain one among many factors in a 

dynamic market. Furthermore, the 

Departments anticipate that a Federal 

IDR process with consistent payment 

determination outcomes will lead to 

fewer dispute initiations, because 

parties will have a better understanding 

of what a determination will likely be 

and more disputes would likely be 

settled in open negotiation or even 

earlier, resulting in the parties avoiding 

the costs associated with the Federal 

IDR process. 

The Departments also do not 

anticipate that the policies finalized in 

these rules would cause plans and 

issuers to increase premiums, as further 

discussed in section IV.G of this 

preamble, or patient cost sharing, 

because administrative fees paid would 

likely represent a very small percentage 

of the costs considered by plans and 

issuers in calculating annual premiums 

or cost sharing. 

Many commenters emphasized the 

importance of considering the proposed 

administrative fee amount alongside 

batching requirements to determine 

whether the administrative fee amount 

would be cost-prohibitive. Some 

commenters suggested that batching 

policies could mitigate the financial 

challenges providers and facilities face, 

especially when pursuing low-dollar 

claims. A few commenters suggested it 

was premature to update the 

administrative fee amount or provide 

feedback on a proposed amount until 

batching guidance is updated. One 

commenter viewed an administrative 

fee of $150 per party as reasonable so 

long as a claim is defined as an episode 

of care or a single medical encounter in 

the batching policy. 

The Departments are continuing to 

assess batching flexibilities and the 

impact of batching on various parts of 

the Federal IDR process. To further 

improve batching requirements, the 

Departments proposed provisions in the 

IDR Operations proposed rules 118 that 

would allow for more clarity, certainty, 

and flexibility in batching multiple 

items or services in a single dispute.119

These batching proposals are designed 

so that the expenses of engaging in the 

Federal IDR process, including the 

administrative fee, do not unreasonably 

impede parties’ access to the Federal 

IDR process. As previously mentioned, 

the IDR Operations proposed rules 120

also proposed a reduced administrative 

fee for low-dollar disputes, identified as 

disputes for which the highest offer by 

either party in open negotiation was less 

than the administrative fee amount, 

which, if finalized, would mitigate 

financial burden on providers and 

facilities when pursuing payment on 

low-dollar claims. The Departments 

encourage interested parties to submit 

comments on the IDR Operations 

proposed rules prior to the comment 

deadline.121


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88510 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

implement if finalized. There is an urgency to 

publish these final rules due to the need to 

sufficiently fund the Federal IDR process in 2024. 

122 88 FR 65888. 

123A tiered fee structure was first proposed in the 

Calendar Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act and implemented for all disputes 

initiated as of January 1, 2023. See Centers for 

Medicare & Medicaid Services (October 31, 2022). 

Calendar Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act. https://www.cms.gov/cciio/ 

resources/regulations-and-guidance/downloads/ 

cy2023-fee-guidance-federal-independent-disputeresolution-process-nsa.pdf. 

124 88 FR 65888. 

125 88 FR 65888 at 65895 through 65896. 

While the Departments continue to 

consider improvements to the Federal 

IDR process, including policies 

surrounding batching and low-dollar 

claims, the No Surprises Act requires 

that the administrative fee be estimated 

to cover the expenditures estimated to 

be made by the Departments in carrying 

out the Federal IDR process in the year, 

and the Departments estimate that $115 

per party per dispute is the appropriate 

administrative fee amount to meet this 

requirement for disputes initiated on or 

after the effective date of these rules. 

B. Certified IDR Entity Fee Ranges 

Under current regulations at 26 CFR 

54.9816–8T(e)(2)(vii), 29 CFR 2590.716– 

8(e)(2)(vii), and 45 CFR 

149.510(e)(2)(vii), the certified IDR 

entity fees for single and batched 

determinations are set by the certified 

IDR entities within the upper and lower 

limits of ranges for each as set forth in 

guidance issued annually by the 

Departments. 

In the IDR Fees proposed rules, the 

Departments proposed to amend the 

provisions of the regulations 

establishing the ranges for certified IDR 

entity fees for single and batched 

disputes to establish the ranges in notice 

and comment rulemaking, rather than in 

guidance, at 26 CFR 54.9816– 

8(e)(2)(vii), 29 CFR 2590.716– 

8(e)(2)(vii), and 45 CFR 

149.510(e)(2)(vii). Further, the IDR Fees 

proposed rules provided that, consistent 

with current rules, certified IDR entities 

must annually provide a fixed fee for 

single determinations and separate fixed 

fees for batched determinations within 

the upper and lower limits for each as 

set in notice and comment rulemaking. 

Additionally, the IDR Fees proposed 

rules provided that the certified IDR 

entity fee ranges established by the 

Departments in rulemaking would 

remain in effect until new certified IDR 

entity fee ranges are established by 

notice and comment rulemaking,122

allowing the Departments to update the 

certified IDR entity fee ranges more or 

less frequently than annually. Finally, 

the Departments proposed that the 

certified IDR entity or IDR entity seeking 

certification may seek advance written 

approval from the Departments to 

update its fees more often than once 

annually. 

The Departments proposed that for 

disputes initiated on or after the later of 

the effective date of these rules or 

January 1, 2024, certified IDR entities 

would be permitted to charge a fixed 

certified IDR entity fee for single 

determinations within the range of $200 

to $840, unless a fee not within that 

range is approved by the Departments 

pursuant to paragraphs 26 CFR 54.9816– 

8(e)(2)(vii)(A) and (B), 29 CFR 

2590.716–8(e)(2)(vii)(A) and (B), and 45 

CFR 149.510(e)(2)(vii)(A) and (B). The 

Departments also proposed that for 

disputes initiated on or after the later of 

the effective date of these rules or 

January 1, 2024, certified IDR entities 

would be permitted to charge a fixed 

certified IDR entity fee for batched 

determinations within the range of $268 

to $1,173, unless a fee outside this range 

is approved by the Departments 

pursuant to paragraphs 26 CFR 54.9816– 

8(e)(2)(vii)(A) and (B), 29 CFR 

2590.716–8(e)(2)(vii)(A) and (B), and 45 

CFR 149.510(e)(2)(vii)(A) and (B). The 

Departments proposed to continue to 

use a tiered fee structure based on the 

number of line items within the 

batch.123 Under the IDR Fees proposed 

rules, certified IDR entities would be 

permitted to charge a fixed tiered fee 

within the range of $75 to $250 for every 

additional 25 line items within a 

batched dispute beginning with the 26th 

line item.124 The IDR Fees proposed 

rules explained the Departments’ 

considerations for proposing the 

certified IDR entity fee ranges, which 

included the anticipated time and 

resources needed for certified IDR 

entities to make payment 

determinations meeting the 

requirements of the statute, rules, and 

guidance; the anticipated time and 

resources needed for data reporting; the 

anticipated time and resources needed 

to comply with audit requirements; the 

anticipated volume of Federal IDR 

initiations and payment determination 

quality assessments; the anticipated 

volume of Federal IDR initiations 

ineligible for the Federal IDR process; 

and the level of complexity in 

determining the eligibility of items and 

services for the Federal IDR process.125

These fee ranges would apply until 

another set of fee ranges is proposed and 

finalized through notice and comment 

rulemaking. 

If a certified IDR entity wishes to 

charge a fee outside either of these fee 

ranges, it would continue to follow the 

existing process for requesting written 

approval from the Departments outlined 

in 26 CFR 54.9816–8(e)(2)(vii)(A) and 

(B), 29 CFR 2590.716–8(e)(2)(vii)(A) and 

(B), and 45 CFR 149.510(e)(2)(vii)(A) 

and (B). 

Since the publication of the IDR Fees 

proposed rules, the Departments have 

analyzed updated data and assumptions 

as applied to the factors considered in 

the IDR Fees proposed rules’ preamble 

to set the fee ranges, and the 

Departments found that the results of 

the analysis remain the same. The 

Departments received comments on 

these proposals. 

The Departments are finalizing as 

proposed the policy to establish the 

certified IDR entity fee ranges through 

notice and comment rulemaking, rather 

than guidance. The Departments are 

also finalizing the certified IDR entity 

fee ranges for single and batched 

disputes as proposed. Finally, the 

Departments are finalizing the fixed tier 

fee structure for batched disputes, as 

well as the range for this structure, as 

proposed. 

However, after considering the public 

comments, the Departments are not 

finalizing the proposal which would 

have allowed the Departments to set the 

certified IDR entity fee ranges more 

frequently than annually but are instead 

finalizing the proposal with 

modifications to reflect that the certified 

IDR entity fee ranges may be established 

by the Departments no more frequently 

than annually through notice and 

comment rulemaking. Further, the 

Departments are finalizing the proposal 

that the certified IDR entity or IDR 

entity seeking certification may seek 

advance written approval from the 

Departments to update its fees more 

often than once annually, with 

modifications to reflect that in addition 

to setting their initial fee for the 

calendar year, certified IDR entities may 

only request approval from the 

Departments to update their fees one 

additional time per year, and with 

additional non-substantive 

modifications for readability. Finalizing 

this policy would result in a process 

where the certified IDR entity or IDR 

entity seeking certification sets their 

fixed fees for single and batched 

determinations for the year, and then is 

allowed one opportunity at any point 

during the calendar year to update their 

fixed fees, provided that their request is 

approved by the Departments. 


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Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88511 

Many commenters supported the 

proposal to establish the certified IDR 

entity fee ranges through notice and 

comment rulemaking. Several 

commenters noted that establishing the 

certified IDR entity fee ranges through 

notice and comment rulemaking would 

increase transparency and allow 

interested parties to provide feedback 

that would help the Departments 

appropriately adjust the fee ranges. 

Many commenters expressed opposition 

to the Departments’ proposal to 

establish the certified IDR entity fee 

ranges more or less frequently than 

annually. The majority of these 

commenters encouraged the 

Departments to update the certified IDR 

entity fee ranges only once annually to 

create a more predictable and stable 

Federal IDR process. Several 

commenters expressed concern that 

changing the certified IDR entity fee 

ranges more frequently than once 

annually would prevent providers from 

effectively budgeting for participation in 

the Federal IDR process, which would 

create a barrier to access. A few 

commenters noted that unpredictable 

changes to the certified IDR entity fee 

ranges could impact plans’ and issuers’ 

abilities to budget for the Federal IDR 

process and could lead plans and 

issuers to budget more conservatively 

and pass on the cost increase to 

consumers. 

A few commenters generally 

supported the flexibility to update the 

certified IDR entity fee ranges more or 

less frequently than annually. However, 

one commenter supported the proposed 

flexibility only if the Departments 

adjusted the fee ranges less frequently 

than annually, while another 

commenter supported the proposed 

flexibility if the Departments provided 

adequate notice, such as 90 days, before 

implementing the changed fee ranges. 

Further, several commenters opposed 

the proposal to allow certified IDR 

entities or IDR entities seeking 

certification to seek advance written 

approval from the Departments to set 

their certified IDR entity fees more often 

than annually. Similar to the proposal to 

establish the certified IDR entity fees 

through notice and comment 

rulemaking more or less frequently than 

annually, some commenters expressed 

concerns that the proposed policy 

would cause unpredictability for the 

parties, which would impact their 

ability to effectively budget for the 

Federal IDR process. One commenter 

misinterpreted the proposed policy as 

proposing to require certified IDR 

entities to adjust their fees whenever 

operational or technological efficiencies 

could justify a decrease in cost, and 

expressed concern that the proposed 

policy may discourage certified IDR 

entities from participating in the Federal 

IDR process. One commenter opposed 

multiple fee adjustments within a given 

year but supported allowing certified 

IDR entities a limit of one additional fee 

adjustment per year following a 

compelling request and formal approval. 

The Departments agree with 

commenters that the proposal to 

establish the certified IDR entity fee 

ranges through notice and comment 

rulemaking will improve transparency 

and provide opportunity for greater 

engagement by interested parties in the 

establishment of the ranges. The 

Departments recognize commenters’ 

concerns that the proposed flexibility to 

set the certified IDR entity fee ranges 

through notice and comment 

rulemaking more or less frequently than 

annually would enable multiple 

changes to the certified IDR entity fee 

ranges over the course of a year. In 

general, the Departments recognize that 

frequent changes to the established 

certified IDR entity fee ranges could 

increase unpredictability in the Federal 

IDR process and potentially burden 

parties, but note that they did not 

propose this policy with the intention of 

pursuing such frequent changes. The 

Departments contemplated establishing 

this proposed flexibility so that the 

certified IDR entity fee ranges could 

remain effective for multiple years. 

Further, updating the certified IDR 

entity fee ranges does not guarantee that 

certified IDR entities will set new fixed 

fee amounts. Each certified IDR entity 

determines their fee amounts 

independently, and there is no 

requirement to make a corresponding 

adjustment each time the certified IDR 

entity fee ranges established by the 

Departments change, provided the 

certified IDR entity’s fee stays within 

the new range. 

While it would be unlikely that the 

Departments would pursue multiple 

notice and comment rulemakings in a 

single year to adjust the certified IDR 

entity fee ranges, the Departments 

acknowledge the potential for the 

proposed policy to increase uncertainty 

within the Federal IDR process. 

Therefore, to be responsive to 

commenters’ concerns, the Departments 

are finalizing this proposal with 

modifications to reflect that the certified 

IDR entity fee ranges may be established 

no more frequently than once per 

calendar year. This allows the certified 

IDR entity fee ranges to remain effective 

over multiple years until they are 

updated in notice and comment 

rulemaking, while addressing 

commenters’ concerns by preventing 

multiple adjustments of the certified 

IDR entity fee ranges in a single year. 

The Departments acknowledge that 

frequent increases to certified IDR entity 

fees could lead to unpredictability and 

complicate the ability of the parties to 

effectively budget for the Federal IDR 

process. The Departments are of the 

view that the proposed mechanism for 

certified IDR entities to request to set 

their fees more than once annually 

includes sufficient guardrails to ensure 

that any changes to the certified IDR 

entities’ fees would not prevent parties 

from accessing the Federal IDR process. 

Specifically, the Departments proposed 

to require certified IDR entities to 

submit the following information to the 

Departments in their requests: (1) the 

fixed fee that the certified IDR entity is 

seeking to charge; (2) a description that 

reasonably explains the circumstances 

that require a change to its fee; and (3) 

a detailed description that reasonably 

explains how the change to its fee will 

be used to mitigate the effects of these 

circumstances. The Departments would 

use their discretion to determine if the 

explanations included in the request 

demonstrate that the change would 

ensure the certified IDR entity’s 

financial viability and would not 

impose on parties an undue barrier to 

accessing the Federal IDR process. 

The Departments seek to strike a 

balance between predictable fees for 

parties participating in the Federal IDR 

process and certified IDR entities’ need 

for flexibility to respond to 

circumstances that require fee 

adjustments to maintain program 

operations. For example, the 

Departments acknowledge that certified 

IDR entities consider various factors, 

including operational costs, in setting 

fees for the Federal IDR process. 

However, certified IDR entities have 

needed to increase staff resources, 

implement system updates, and adjust 

operations to respond to unexpectedly 

frequent changes to guidance or 

regulations governing the Federal IDR 

process or the volume of disputes 

initiated and closed under the Federal 

IDR process. To ensure that certified 

IDR entities have sufficient funding to 

respond to such circumstances, 

providing certified IDR entities with the 

ability to request an update to their fees 

one additional time during a calendar 

year is appropriate. 

To address some of the concerns 

expressed by commenters, the 

Departments are finalizing this proposal 

with modifications to reflect that 

certified IDR entities may only request 

approval from the Departments to set 

their fee one additional time for a 


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88512 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

126See https://www.cms.gov/nosurprises/helpresolve-payment-disputes/certified-idre-list. 

calendar year. In other words, if a 

certified IDR entity wishes to update its 

fees an additional time after already 

setting fees for the calendar year, the 

certified IDR entity must seek approval 

from the Departments to do so. A 

certified IDR entity may set its fees at 

most two times for a calendar year, once 

at the initial setting of the fees, and once 

after receiving approval from the 

Departments to update the fees, 

regardless of whether the Departments 

have established new certified IDR fee 

ranges in notice and comment 

rulemaking. If the Departments reject a 

certified IDR entity’s request to update 

its fees during the calendar year, the 

certified IDR entity may continue to 

seek approval by submitting subsequent 

requests as long as these requests 

comply with the requirements finalized 

in this rule. 

If a certified IDR entity requests to 

update its fees after initially setting its 

fee for the calendar year, and the request 

is approved by the Departments, the 

change to its fees will be made public 

before those fees are effective, in a form 

and manner specified by the Secretary, 

to allow the parties time to consider the 

fee change in their decision making. 

Updated fees will apply to disputes 

initiated on or after the effective date of 

the fee amount. The modified policy 

will provide an appropriate amount of 

flexibility to certified IDR entities to 

make a fee adjustment to account for 

efficiencies and fluctuations in the 

conditions of the Federal IDR process in 

future years, while also capping the 

number of fee adjustments in a given 

calendar year and limiting cost volatility 

for parties participating in the Federal 

IDR process. 

The Departments solicited comment 

on whether they should apply an 

inflationary adjustment, such as the 

CPI–U, to the considerations used to 

develop the certified IDR entity fee 

ranges in future years. One commenter 

supported the use of an inflationary 

adjustment and suggested updating the 

certified IDR entity fee ranges annually 

based on inflation rather than through 

notice and comment rulemaking. A few 

commenters opposed updating the 

certified IDR entity fee ranges using an 

inflationary adjustment such as the CPI– 

U. Specifically, one commenter posited 

that since the CPI–U is updated on a 

monthly basis, the Departments might 

pursue monthly adjustments to the 

certified IDR entity fee ranges, which 

would severely complicate the Federal 

IDR process. Another commenter 

expressed concern that applying an 

inflationary adjustment would only 

drive costs up over time, prompting 

plans and issuers to pass any additional 

costs on to consumers. One commenter 

neither explicitly supported nor 

opposed the general use of an 

inflationary adjustment to set the 

certified IDR entity fee ranges but noted 

that setting the certified IDR entity fee 

ranges through notice and comment 

rulemaking could be an opportunity to 

adjust based on inflation. This 

commenter cautioned that if the 

Departments pursued the use of an 

inflationary adjustment, such an 

adjustment should be the only 

consideration used to update the 

certified IDR entity ranges. 

The Departments appreciate the 

comments on the use of an inflationary 

adjustment to update the certified IDR 

entity fee in future years. The 

Department share the commenters’ 

desire to maintain predictable and 

accessible costs for participating in the 

Federal IDR process and agree that 

additional adjustments to the fee ranges 

more frequently than annually would 

complicate the Federal IDR process for 

all parties. As stated earlier in this 

preamble, based on the comments 

received, the Departments are finalizing 

the proposal to establish the certified 

IDR entity fee ranges through notice and 

comment rulemaking, which will allow 

for greater transparency and feedback 

related to the establishment of the 

ranges. Further, the Departments are of 

the view that the considerations being 

finalized in this rulemaking are 

necessary to develop reasonable 

certified IDR entity fee ranges, and that 

the addition of inflationary adjustment 

to the considerations, or the exclusive 

use of an inflationary adjustment to 

develop the ranges, is not practical or 

necessary at this time. The Departments 

will continue to carefully consider 

whether such a policy may be 

appropriate in future rulemaking. 

Several commenters expressed 

concerns with the proposed certified 

IDR entity fee ranges’ increased upper 

limits. Some of these commenters stated 

that the proposed certified IDR entity 

fee ranges may be cost-prohibitive and 

limit access to the Federal IDR process, 

particularly for small providers. A few 

of the commenters opposed to the 

proposed increase in the upper limits of 

the certified IDR entity fee ranges 

asserted that any increase in the 

certified IDR entity fee ranges would 

limit participation in the Federal IDR 

process. Specifically, one of these 

commenters asserted that the proposed 

ranges would result in costs passed on 

to patients in the form of increased 

premiums and cost-sharing amounts. 

Some commenters, however, 

supported the proposed certified IDR 

entity fee ranges. Some of these 

commenters asserted that the increase to 

the upper limit of the certified IDR fee 

ranges is reasonable and will encourage 

greater plan and issuer participation 

prior to the Federal IDR process, such as 

during open negotiation, and will 

reduce the time needed for certified IDR 

entities to render payment 

determinations. 

The Departments maintain the view 

that the proposed certified IDR entity 

fee ranges will keep costs reasonable 

such that participating in the Federal 

IDR process will not be cost-prohibitive, 

including for smaller providers, while 

also ensuring that certified IDR entities 

are able to cover their operating costs 

and continue participating in the 

Federal IDR process. The Departments 

acknowledge that broadening the 

certified IDR entity fee ranges could 

have an impact on the cost to parties to 

engage in the Federal IDR process. 

However, the current range of fees 

charged by certified IDR entities reflects 

that, since the opening of the Federal 

IDR process, certified IDR entities do 

not all charge the same fees, nor do they 

all charge the maximum fee amount in 

the ranges set by the Departments.126 To 

remain competitive, the certified IDR 

entities have an incentive to charge fees 

on the lower end of the established 

range. As a result, the Departments do 

not believe that an increase to the upper 

limits of the certified IDR entity fee 

ranges will result in drastic increases to 

the fees charged by certified IDR 

entities. Further, the Departments have 

not seen any data suggesting that the 

proposed increases to the certified IDR 

entity fee ranges will result in a 

substantial enough increase in costs to 

plans and issuers that they will impact 

patients in the form of increased 

premiums and cost-sharing amounts. 

However, the Departments will continue 

to monitor this dynamic. 

The Departments agree with 

commenters asserting that the increases 

to the certified IDR entity fee ranges will 

encourage greater plan and issuer 

participation prior to the Federal IDR 

process, such as during open 

negotiation. The Departments believe 

that the increases to the certified IDR 

entity fee ranges will encourage parties 

to actively participate in open 

negotiation to preclude the need for the 

Federal IDR process, thereby 

eliminating the need for parties to pay 

the certified IDR entity fee. 

The Departments emphasize that 

while they establish ranges for the 

certified IDR entity fees, certified IDR 

entities choose the fixed fees they 


khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88513 

127See Centers for Medicare & Medicaid Services 

(December 23, 2022). Amendment to the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act: Change in Administrative Fee. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/amended-cy2023-feeguidance-federal-independent-dispute-resolutionprocess-nsa.pdf. 

charge for single and batched 

determinations based on a number of 

factors. As noted earlier in this 

preamble, certified IDR entities have 

needed to make numerous adjustments 

in response to high volumes of disputes, 

complex determinations, and litigation 

resulting in changes to guidance and 

regulations governing the Federal IDR 

process. The proposed ranges for the 

single and batched determination fees, 

including the proposed range for the 

tiered fee for batched determinations, 

allow for appropriate compensation 

corresponding to the complexity and 

effort associated with making eligibility 

and payment determinations. The 

Departments remain of the view that the 

proposed ranges would keep costs for 

participating in the Federal IDR process 

reasonable and reduce the potential for 

increased costs to be passed on to 

patients. 

Several commenters opposed the 

proposed tiered fee structure for batched 

determinations. Commenters were 

concerned that the proposed tiered fee 

structure would be cost-prohibitive, 

particularly due to the absence of a 

limitation on the number of line items 

considered in the price tiers (that is, no 

line item cap to the application of the 

tiered fee, as currently exists). Further, 

some commenters asserted that the 

proposed tiered fee structure and range 

would disincentivize the submission of 

batched disputes. 

A few commenters supported an 

increased fee for larger batched 

determinations but recommended that 

the tiering structure reflect intervals of 

50 line items rather than 25. Further, 

one commenter supported a fixed-dollar 

tiered fee, as opposed to a range, 

suggesting that a fixed-dollar fee would 

provide more consistency across the 

fees charged by different certified IDR 

entities and avoid potential issues such 

as certified IDR entities being 

overwhelmed with disputes and 

resulting delays in the Federal IDR 

process. 

The proposed tiered fee structure and 

range reflect the Departments’ intent to 

keep the costs of participating in the 

Federal IDR process affordable while 

ensuring that certified IDR entities are 

compensated for their work in rendering 

payment determinations on complex 

batched disputes. Certified IDR entities 

have indicated to the Departments that 

making determinations on large batches 

of dissimilar items and services is 

particularly complex and burdensome 

and that they generally do not realize 

economies of scale as the number of 

batched line items increases. The 

Departments considered the impact of 

the TMA IV opinion and order as 

discussed in section I.C of this preamble 

on the anticipated complexity and 

volume of batched disputes while 

determining the certified IDR entity fee 

ranges. The Departments acknowledge 

the efficiencies gained by batching and 

believe that the proposed tiered fee 

structure would maintain those 

efficiencies while allowing certified IDR 

entities to charge a reasonable fee for the 

level of work involved in batched 

determinations. 

Several commenters stated that the 

proposed tiered fee structure might 

increase the costs to disputing parties 

submitting batched disputes with many 

line items because there is no cap to the 

number of line items within a batched 

dispute after which the tiered fee would 

no longer apply. 

A tiered fee selected by each certified 

IDR entity from a dollar range 

established by the Departments allows 

for greater flexibility, as opposed to 

applying a standard fixed dollar amount 

or applying a percentage of the certified 

IDR entity’s batched determination fee 

as is currently used.127 The tiered fee 

range reflects the costs associated with 

increasing line items in a batched 

dispute and provides certified IDR 

entities the appropriate flexibility to set 

fees commensurate with their costs. 

Additionally, the Departments believe 

that a dollar range based on the number 

of line items in a batched dispute would 

provide transparent and consistent 

pricing for both parties and certified IDR 

entities. The Departments agree that 

instances of batched disputes with 

exceedingly high numbers of line items 

occur infrequently but remain a possible 

occurrence. In addition, as mentioned 

previously, certified IDR entities have 

indicated that they generally do not 

realize economies of scale for batched 

disputes with high numbers of line 

items. For instance, certified IDR 

entities often need to verify the acuity 

of every patient in a batch, even when 

the service is the same. Given the 

anticipated infrequency of batched 

disputes with exceedingly high numbers 

of line items and in recognition of the 

need for the certified IDR entity to cover 

its costs for such batched disputes, the 

Departments believe the tiered fee 

structure is a reasonable approach. 

The Departments also considered 

whether certified IDR entities should be 

permitted to charge only an additional 

fixed dollar amount (for example, $125, 

$150, $200, etc.) per every additional 25 

line items but determined that the 

proposed range for a tiered fee would 

provide the appropriate operational 

flexibility for certified IDR entities. 

Providing this flexibility is important to 

maintain participation of certified IDR 

entities in the Federal IDR process. The 

operational costs for the Federal IDR 

process incurred by each certified IDR 

entity may vary, requiring certified IDR 

entities to consider their unique 

circumstances in determining their 

fixed fee amounts to maintain financial 

viability. Therefore, allowing certified 

IDR entities to select a tiered fee within 

a dollar range established by the 

Departments will allow the certified IDR 

entities the flexibility to tailor their 

pricing to fit their company’s needs, 

while ensuring reasonable costs for 

parties participating in the Federal IDR 

process. 

For the purposes of the batched tiered 

fee range intervals, the Departments 

considered whether a grouping of 50 

line items would be a more appropriate 

interval than the proposed interval of 25 

line items. A few commenters suggested 

that 50 line items would be a more 

appropriate interval than the proposed 

25-line-item increment. In determining 

the interval appropriate for the tiered 

fee range for batched determinations, 

the Departments considered historical 

trends in the number of line items 

submitted in batched disputes in 

addition to the anticipated changes in 

batching behaviors due to the TMA IV 

vacatur of certain batching provisions. 

The Departments remain of the view 

that a 25-line-item increment is the most 

reasonable increment to balance the 

affordability to parties and the amount 

of resources expended by the certified 

IDR entities to review those line items. 

As a result, the Departments are 

finalizing this policy as proposed. 

III. Severability 

In the event that any portion of these 

final rules is declared invalid, the 

Departments intend that the various 

aspects of the finalized administrative 

fee provisions and certified IDR entity 

fee provisions be severable. The 

Departments proposed at 26 CFR 

54.9816–8(d)(3)(i), 29 CFR 2590.716– 

8(d)(3)(i), and 45 CFR 149.510(d)(3)(i) 

that any provision of paragraph (d) or 

paragraphs (e)(2)(vii) through (e)(2)(ix) 

held to be invalid or unenforceable as 

applied to any person or circumstance 

would be construed so as to continue to 

give the maximum effect to the 

provision permitted by law, including 

as applied to persons not similarly 


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situated or to dissimilar circumstances, 

unless such holding is that the 

provision of these paragraphs is invalid 

and unenforceable in all circumstances, 

in which event the provision would be 

severable from the remainder of these 

paragraphs and would not affect the 

remainder thereof. The Departments 

further proposed at new 26 CFR 

54.9816–8(d)(3)(ii), 29 CFR 2590.716– 

8(d)(3)(ii), and 45 CFR 149.510(d)(3)(ii) 

that the provisions in paragraphs (d) 

and (e)(2)(vii) through (ix) are intended 

to be severable from each other. 

Additionally, the Departments further 

proposed that if a court were to find 

unlawful the administrative fee policies, 

the certified IDR entity fee policies 

should stand. In the alternative, if a 

court were to find unlawful the certified 

IDR entity fee policies, the 

administrative fee policies should stand. 

A few commenters supported the 

proposed severability provisions. These 

commenters stated that the provisions 

would help mitigate uncertainty that 

may result from future court decisions 

if a lawsuit occurs. 

The Departments agree that the 

severability clause will help mitigate 

uncertainty. After considering the 

comments, the Departments are 

finalizing these policies as proposed, 

with a technical modification that the 

provisions in 26 CFR 54.9816–8(d) and 

(e)(2)(vii) and (viii), 29 CFR 2590.716– 

8(d) and (e)(2)(vii) and (viii), and 45 

CFR 149.510(d) and (e)(2)(vii) and (viii) 

are intended to be severable, rather than 

26 CFR 54.9816–8(d) and (e)(2)(vii) 

through (ix), 29 CFR 2590.716–8(d) and 

(e)(2)(vii) through (ix), and 45 CFR 

149.510(d) and (e)(2)(vii) through (ix). 

This technical modification is due to the 

restructuring of the regulatory text in 

these final rules pertaining to certified 

IDR entity fees at 26 CFR 54.9816– 

8(e)(2)(vii) and (viii), 29 CFR 2590.716– 

8(e)(2)(vii) and (viii), and 45 CFR 

149.510(e)(2)(vii) and (viii) compared to 

what was proposed, as discussed further 

in section II.B of this preamble. 

The Departments further clarify their 

intent that the methodology being 

adopted here to set the administrative 

fee amount and the considerations the 

Departments used in developing the 

certified IDR entity fee ranges are also 

intended to be severable. Should any 

aspect of the methodology or 

considerations be determined to be 

unlawful, the Departments intend for 

the administrative fee amount or 

certified IDR entity fee ranges to be 

adjusted by applying the methodology 

in accordance with the remaining 

elements of the methodology or 

considerations. For instance, if it is 

determined that certain expenditures 

should not have been included in 

calculating the administrative fee 

amount, then the Departments would 

implement these rules by eliminating 

those expenditures from the total 

expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process, and dividing the 

new expenditures amount by the same 

estimated number of administrative fees 

paid to calculate the new administrative 

fee amount. The resulting 

administrative fee amount would be 

immediately effective, without requiring 

additional notice and comment 

rulemaking. 

IV. Economic Impact and Paperwork 

Burden 

A. Summary—Departments of Health 

and Human Services and Labor 

These final rules establish the 

administrative fee amount and the 

certified IDR entity fee ranges in notice 

and comment rulemaking, and the 

preamble sets forth the methodology for 

setting the administrative fee amount 

and the considerations used to develop 

the certified IDR entity fee. The 

Departments have examined the effects 

of these final rules as required by 

Executive Order 13563 (76 FR 3821, 

January 21, 2011, Improving Regulation 

and Regulatory Review); Executive 

Order 12866 (58 FR 51735, October 4, 

1993, Regulatory Planning and Review); 

Executive Order 14094 (88 FR 21879, 

April 11, 2023, Modernizing Regulatory 

Review); the Regulatory Flexibility Act 

(Pub. L. 96–354, September 19, 1980); 

section 1102(b) of the Social Security 

Act (42 U.S.C. 1102(b)); section 202 of 

the Unfunded Mandates Reform Act of 

1995 (Pub. L. 104–4, March 22, 1995); 

and Executive Order 13132 (64 FR 

43255, August 10, 1999, Federalism). 

B. Executive Orders 12866, 13563, and 

14094—Departments of Health and 

Human Services and Labor 

Executive Orders 12866, 13563, and 

14094 direct Federal agencies to assess 

all costs and benefits of available 

regulatory alternatives and if regulation 

is necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Under Executive Order 12866, 

‘‘significant’’ regulatory actions are 

subject to review by the Office of 

Management and Budget (OMB). 

Executive Order 14094, entitled 

‘‘Modernizing Regulatory Review’’ 

(hereinafter, the Modernizing E.O.), 

amends section 3(f) of Executive Order 

12866 (Regulatory Planning and 

Review). The amended section 3(f) of 

Executive Order 12866 defines a 

‘‘significant regulatory action’’ as an 

action that is likely to result in a rule: 

(1) having an annual effect on the 

economy of $200 million or more in any 

1 year (adjusted every 3 years by the 

Administrator of OMB’s Office of 

Information and Regulatory Affairs 

(OIRA) for changes in gross domestic 

product), or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, territorial, or tribal 

governments or communities; (2) 

creating a serious inconsistency or 

otherwise interfering with an action 

taken or planned by another agency; (3) 

materially altering the budgetary 

impacts of entitlement grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or (4) 

raising legal or policy issues for which 

centralized review would meaningfully 

further the President’s priorities or the 

principles set forth in this Executive 

order, as specifically authorized in a 

timely manner by the Administrator of 

OIRA in each case. 

A regulatory impact analysis (RIA) 

must be prepared for rules deemed 

significant. OMB’s OIRA has deemed 

this rule significant. The Departments 

have prepared an RIA that to the best of 

their ability presents the costs and 

benefits of these rules. OMB has 

reviewed these final regulations, and the 

Departments have provided the 

following assessment of their impact. 

C. Need for Regulatory Action— 

Departments of Health and Human 

Services and Labor 

The Departments are amending the 

certified IDR entity and administrative 

fee provisions of the rules for the 

Federal IDR process to set the 

administrative fee amount and the 

certified IDR entity fee ranges in notice 

and comment rulemaking, and set forth 

the methodology for setting the 

administrative fee amount and the 

considerations for developing the 

certified IDR entity fee ranges. These 

policies will ensure that all interested 

parties are sufficiently notified and 

provided an opportunity to comment on 

the fees associated with the Federal IDR 

process. 

D. Summary of Impacts and Accounting 

Table—Departments of Health and 

Human Services and Labor 

The expected benefits and costs of 

these final rules are summarized in 

Table 1 and discussed in this section of 

the preamble. In accordance with OMB 

Circular A–4, Table 1 depicts an 


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Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88515 

accounting statement summarizing the 

Departments’ assessment of the benefits, 

costs, and transfers associated with this 

regulatory action. The Departments are 

unable to quantify all benefits and costs 

of these final rules but have sought, 

where possible, to describe these nonquantified impacts. The effects in Table 

1 reflect non-quantified impacts and 

estimated direct monetary costs 

resulting from the provisions of these 

final rules. 

1. Benefits 

The primary benefit of these final 

rules is to allow the Federal IDR process 

to function through establishing the 

administrative fee amount and certified 

IDR entity fee ranges in rulemaking and 

establishing the amounts of these fees 

for disputes initiated on or after the 

effective date of these rules. In response 

to the opinion and order in TMA IV, 

these final rules are necessary in order 

to set the administrative fee amount as 

close to January 1, 2024 as possible, 

because the current $50 administrative 

fee amount is insufficient to satisfy the 

statutory requirement that the total 

amount of fees paid for the year be 

estimated to be equal to the amount of 

expenditures estimated to be made by 

the Departments in carrying out the 

Federal IDR process. The primary nonquantifiable benefit of these final rules 

is the continuation of a functioning 

Federal IDR process, which helps to 

protect consumers from certain surprise 

medical bills and helps providers to 

receive compensation for certain out-ofnetwork services. Additional benefits 

specific to each Federal IDR process fee 

type appear in the following sections. 

a. Administrative Fee Amount and 

Methodology 

The Departments are finalizing the 

proposal to establish the administrative 

fee amount in notice and comment 

rulemaking for disputes initiated on or 

after the effective date of these rules, 

and the Departments are setting forth 

the methodology for determining the 

administrative fee amount. Utilizing 

notice and comment rulemaking will 

increase transparency of the 

administrative fee-setting process and 

allow interested parties to provide 

feedback to the Departments prior to the 

Departments setting the administrative 

fee amount. 

The Departments sought comment on 

these benefits. The Departments 

received comments on these benefits 

and respond to these comments in 

section II.A of this preamble. The 

Departments are finalizing these 

benefits as proposed. 

b. Certified IDR Entity Fee Ranges 

The Departments proposed to 

establish the certified IDR entity fee 

ranges for single and batched 

determinations, which include a tiered 

fee range for batched determinations 

that exceed 25 line items, in notice and 

comment rulemaking for disputes 

initiated on or after the effective date of 

these rules. Utilizing notice and 

comment rulemaking to set the 

appropriate ranges for certified IDR 

entity fees will increase transparency for 

parties interested in the certified IDR 

entity fee ranges and allow these parties 

to identify in advance the impacts of 

changing the certified IDR entity fee 

ranges. 

The Departments sought comment on 

these benefits. The Departments 

received comments on these benefits 

and respond to these comments in 

section II.B of this preamble. The 

Departments are finalizing these 

benefits as proposed. 


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TABLE 1: Accounting Table 

Accountin2: Statement 

Benefits: 

Non-Quantified: 

• Increased interested party transparency as a result of the policies to establish the administrative fee amount 

and certified IDR entity fee ranges in notice and comment rulemaking, as well as setting forth the 

methodology for calculating the administrative fee amount and the considerations for developing the 

certified IDR entity fee ranges. 

Costs: Estimate Year Dollar Discount Rate Period Covered 

Annualized $0.14 million 2023 7 percent 2023-2027 

Monetized ($/Year) $0.13 million 2023 3 percent 2023-2027 

Quantified: 

• Costs to interested parties of $638,631 to review and interpret these rules in 2023. 

Transfers: Estimate Year Dollar Discount Rate Period Covered 

Annualized $31.65 million 2023 7 percent 2023-2027 

Monetized ($/year) $32.31 million 2023 3 percent 2023-2027 

Quantified: 

• Transfers from the parties to the Federal Government of approximately $32 million annually beginning in 

2024 as a result of the policy to set the administrative fee amount at $115 per party per dispute for disputes 

initiated on or after the effective date of these rules. 

• Transfers from the parties to certified IDR entities of approximately $9 million annually beginning in 2024 

as a result of the policy to set the certified IDR entity fee ranges at $200-$840 for single determinations, 

$268-$1,173 for batched determinations, and an additional $75-$250 for every 25 line items in excess of the 

first 25 line items. 
88516 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

128As a result of the opinion and order in TMA 

IV, which vacated the portion of the December 2022 

guidance that increased the administrative fee 

amount to $350 per party per dispute for disputes 

initiated during calendar year 2023, the 

administrative fee amount reverted to the amount 

established in the October 2022 guidance. See 

Centers for Medicare & Medicaid Services (August 

11, 2023). Federal Independent Dispute Resolution 

(IDR) Process Administrative Fee FAQs. https://

www.cms.gov/cciio/resources/regulations-andguidance/downloads/no-surprises-act-independentdispute-resolution-administrative-fee-frequentlyasked-questions.pdf. Also see Centers for Medicare 

& Medicaid Services (October 31, 2022). Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act. https://www.cms.gov/cciio/ 

resources/regulations-and-guidance/downloads/ 

cy2023-fee-guidance-federal-independent-disputeresolution-process-nsa.pdf. 

129The details of the calculation of the number 

of disputes are provided at 88 FR 65893. 

130The Departments estimate that currently 

approximately 80 percent of disputes are single 

2. Costs 

a. Administrative Fee Amount and 

Methodology 

The Departments are finalizing the 

proposal to establish the administrative 

fee amount in notice and comment 

rulemaking for disputes initiated on or 

after the effective date of these rules, 

and set forth the methodology for setting 

the administrative fee amount with 

modifications described in section II.A 

of this preamble to ensure that disputing 

and other parties are sufficiently 

notified and provided an opportunity to 

comment on the administrative fee 

amount. The Departments are also 

finalizing the administrative fee amount 

for disputes initiated on or after the 

effective date of these rules at $115 per 

party per dispute. 

The current administrative fee is $50 

per party per dispute.128 In the IDR Fees 

proposed rules, the Departments 

estimated that approximately 225,000 

disputes are closed per year.129

Therefore, if the current administrative 

fee were to remain applicable, the 

Departments estimated in the IDR Fees 

proposed rules that the parties would 

pay approximately $22.5 million in 

administrative fees annually (225,000 

disputes × 2 parties per dispute × $50 

per party). In the IDR Fees proposed 

rules, the Departments also estimated 

that if they were to finalize an 

administrative fee amount of $150 per 

party per dispute for disputes initiated 

on or after the effective date of these 

rules, the parties would pay 

approximately $67.5 million in 

administrative fees annually beginning 

in 2024 (225,000 disputes × 2 parties per 

dispute × $150 per party), assuming the 

number of disputes remains stable year 

over year and the administrative fee 

amount is not subsequently changed 

through notice and comment 

rulemaking. Therefore, in the IDR Fees 

proposed rules, the Departments 

estimated that the costs associated with 

this proposal, if finalized, would be 

approximately $45 million ($67.5 

million if this proposal is finalized 

minus $22.5 million if the status quo 

were to continue). 

The Departments sought comment on 

these costs and assumptions. The 

Departments received comments on 

these assumptions. 

Several commenters suggested that 

the Departments’ estimate of 225,000 

closed disputes is too low. A few 

commenters suggested that the 

Departments are underestimating 

utilization of the Federal IDR process 

and recommended that the Departments 

analyze the available data from States 

implementing similar policies before the 

No Surprises Act. Several commenters 

disagreed with the assumption used to 

calculate the 225,000 closed disputes, 

which assumed that TMA IV’s vacatur of 

batching regulations and guidance 

would reduce the volume of disputes by 

25 percent. 

As discussed in section II.A of this 

preamble, after consideration of 

comments, the Departments are 

finalizing the administrative fee using 

the estimated total number of 

administrative fees paid to certified IDR 

entities, rather than the projected total 

number of closed disputes, to estimate 

the number of administrative fees to be 

paid under the administrative fee 

methodology. Federal IDR process data 

show that the monthly average number 

of administrative fees paid to certified 

IDR entities between February 2023 and 

July 2023 was 41,000. The Departments 

project this monthly average forward by 

12 months to estimate 492,000 

administrative fees paid in a year. 

After consideration of public 

comments, the Departments are 

modifying the proposed assumptions 

and cost estimates as follows. If the 

current administrative fee were to 

remain applicable, the parties would 

pay approximately $24.6 million in 

administrative fees annually (492,000 

administrative fees paid × $50 per party 

per dispute). As stated in section II.A of 

this preamble, the estimated $24.6 

million in administrative fee collections 

if the Departments were to retain the 

current $50 administrative fee would be 

inadequate for the Departments to carry 

out the Federal IDR process in 2024, as 

they estimate the expenditures to be 

made in 2024 to be approximately $56.6 

million. As the Departments are now 

finalizing an administrative fee amount 

of $115 per party per dispute for 

disputes initiated on or after the 

effective date of these rules, the 

Departments estimate that the parties 

will pay approximately $56.6 million in 

administrative fees annually beginning 

in 2024 (492,000 administrative fees 

paid × $115 per party per dispute), 

which is sufficient to cover the 

estimated annual expenditures of 

approximately $56.6 million, assuming 

the number of administrative fees paid 

remains stable year over year and the 

administrative fee amount is not 

subsequently changed through notice 

and comment rulemaking. Therefore, 

the costs associated with this policy are 

approximately $32.0 million ($56.6 

million minus $24.6 million if the status 

quo were to continue). 

b. Certified IDR Entity Fee Ranges 

The Departments are finalizing the 

proposal to set the certified IDR entity 

fee ranges for single and batched 

determinations, with a tiered fee range 

for batched determinations that exceed 

25 line items, in notice and comment 

rulemaking for disputes initiated on or 

after the effective date of these rules in 

response to the opinion and order in 

TMA IV to ensure that interested parties 

are sufficiently notified and provided an 

opportunity to comment on the certified 

IDR entity fee ranges. The certified IDR 

entity fee range for single 

determinations for disputes initiated on 

or after the effective date of these rules 

is $200 to $840. The certified IDR entity 

fee range for batched disputes initiated 

on or after the effective date of these 

rules is $268 to $1,173. Further, the 

tiered fee range for batched 

determination for disputes initiated on 

or after the effective date of these rules 

is $75 to $250. 

While the certified IDR entities are 

responsible for setting their fees for 

single and batched determinations, the 

Departments acknowledge that the 

changes to the certified IDR entity fee 

ranges may impact the cost to the 

parties to participate in the Federal IDR 

process. The Departments anticipate 

that the vacatur of batching standards by 

the District Court’s opinion and order in 

TMA IV could result in initiating parties 

submitting single and batched disputes 

in proportions similar to those prior to 

the issuance of the August 2022 

guidance, which interpreted the nowvacated standards for batching qualified 

IDR items or services. Based on internal 

data relating to disputes initiated prior 

to the establishment of the now vacated 

batching criteria that were released in 

August 2022, approximately 70 percent 

of disputes at the time were single 

disputes and approximately 30 percent 

were batched disputes.130 The 


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disputes and 20 percent of disputes are batched 

disputes, and the Departments anticipate that this 

ratio will return to 70 percent of disputes being 

single disputes and 30 percent of disputes being 

batched disputes beginning in calendar year 2024. 

131While the administrative fee must be paid by 

the disputing party for any dispute for which a 

certified IDR entity is selected, the certified IDR 

entity fee is only assessed for disputes that are 

determined eligible for the Federal IDR process. 

132The Departments anticipate that, due to the 

uncertainty around batching practices as a result of 

the TMA IV opinion and order, certified IDR entities 

will likely choose to increase their batched 

determination fee. Therefore, using the 75th 

percentile of the proposed fee range to calculate the 

cost of batched determinations provides a 

reasonable approximation of the expected increase. 

133Based on internal data the Departments 

estimate that approximately 11 percent of batched 

disputes submitted prior to the establishment of the 

batching criteria released in August 2022 exceeded 

25 line items. For this reason, we project that a 

similar number of batched disputes with number of 

line items exceeding 25 line items will be submitted 

due to TMA IV. 

134The Departments estimate that 80 percent of 

disputes are single disputes and 20 percent are 

batched disputes (135,000 × 0.80 and 135,000 × 

0.20, respectively). For the purposes of this 

analysis, the Departments estimate that a subset of 

approximately 8 percent, or 2,160 batched disputes 

would be subject to a batching percentage (27,000 

× 0.08). 

135Without the need to seek further approval, to 

account for the differential in the workload of 

batched determinations, a certified IDR entity may 

charge the following percentages of its approved 

certified IDR entity batched determination fee 

(‘‘batching percentage’’) for batched determinations, 

which are based on the number of line items 

initially submitted in the batch: 

• 2–20 line items: 100 percent of the approved 

batched determination fee; 

• 21–50 line items: 110 percent of the approved 

batched determination fee; 

• 51–80 line items: 120 percent of the approved 

batched determination fee; and 

• 81 line items or more: 130 percent of the 

approved batched determination fee. 

See Centers for Medicare & Medicaid Services 

(October 31, 2022). Calendar Year 2023 Fee 

Guidance for the Federal Independent Dispute 

Resolution Process under the No Surprises Act. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/cy2023-fee-guidancefederal-independent-dispute-resolution-processnsa.pdf. 

Departments anticipate that, as a result 

of TMA IV, initiating parties will return 

to the batching practices they engaged 

in prior to issuance of the August 2022 

guidance, such as initiating a higher 

proportion of batched disputes and 

including more items or services within 

those batched disputes. 

Based on internal Federal IDR process 

data, the Departments estimate that 

certified IDR entities collect a certified 

IDR entity fee for approximately 135,000 

disputes annually.131 Therefore, for the 

purposes of this analysis, the 

Departments estimate that certified IDR 

entities will collect certified IDR entity 

fees for approximately 94,500 single 

disputes and 40,500 batched disputes 

annually (135,000 × 0.70 and 135,000 × 

0.30, respectively). The Departments 

acknowledge that each party must pay 

a certified IDR entity fee to the certified 

IDR entity no later than the time that 

party submits its offer. However, 

because the non-prevailing party is 

ultimately responsible for the full 

certified IDR entity fee, which is 

retained by the certified IDR entity for 

the IDR services it performed, it is the 

Departments’ position that providing a 

per-dispute calculation reasonably 

captures the overall cost of the dispute 

with respect to the certified IDR entity 

fee without implicating false precision 

on the amount of certified IDR entity fee 

costs that initiating and non-initiating 

parties ultimately may incur. 

To develop a reasonable estimate for 

the certified IDR entity fee amount for 

both single and batched disputes, the 

Departments assume that the certified 

IDR entities will set single 

determination fixed fees that 

approximate the median value of the 

finalized fee range and will set batched 

determination fixed fees that 

approximate the 3rd quartile of the 

finalized fee range.132 Therefore, for the 

purposes of this analysis, the 

Departments estimate that the typical 

single determination fixed fee (range 

$200–$840) will be approximately $520, 

and that the typical batched 

determination fixed fee (range $268– 

$1,173) will be approximately $947. At 

an estimated cost of $520 per single 

determination for approximately 94,500 

single determinations annually, the 

Departments estimate that single 

determinations will cost disputing 

parties approximately $49,140,000 

annually ($520 × 94,500). At an 

estimated cost of $947 per batched 

determination for approximately 40,500 

batched determinations annually, the 

Departments estimate that batched 

determinations will cost disputing 

parties approximately $38,353,500 

annually ($947 × 40,500). 

Further, the Departments estimate 

that using the finalized tiered fee range 

for batched determinations, certified 

IDR entities will set and apply a fixed 

fee that approximates the average of the 

proposed range ($75–$250) for batched 

determinations based on the number of 

line items. The Departments estimate 

that certified IDR entities will typically 

set their tiered fee at approximately 

$163. The Departments acknowledge the 

uncertainty surrounding the number of 

line items that may be submitted in 

batched disputes due to the TMA IV 

opinion and order. However, to produce 

an estimate, and for the purposes of this 

analysis, the Departments estimate that 

of the total estimated 40,500 batched 

disputes, approximately 4,455 batched 

determinations will potentially be 

subject to at least 2 applications of the 

tiered fee ($163 × 2 = $326).133 The 

Departments therefore estimate that this 

subset of approximately 4,455 batched 

determinations exceeding 25 line items 

will cost disputing parties 

approximately $1,452,330 annually 

($326 × 4,455). In total, assuming the 

number of disputes remains stable year 

over year, the Departments estimate the 

parties will pay approximately $89 

million in certified IDR entity fees 

annually in accordance with the 

finalized policies ($49,140,000 for single 

determinations + $38,353,500 for 

batched determinations + $1,452,330 for 

the subset of batched determinations 

subject to the tiered fee). 

The calendar year 2023 certified IDR 

entity fee ranges for single 

determinations and batched 

determinations are $200–$700 and 

$268–$938, respectively. Certified IDR 

entities currently charge a median fixed 

fee of $549 for single determinations 

and $770 for batched determinations in 

2023. Therefore, for approximately 

108,000 single determinations and 

24,840 batched determinations (not 

subject to the batched percentage fee 

amount) annually,134 if current certified 

IDR entity fixed fees remained 

applicable, the Departments estimate 

that the parties would pay 

approximately $59,292,000 for single 

determinations ($549 × 108,000) and 

$19,126,800 for batched determinations 

($770 × 24,840). Current guidance 

permits certified IDR entities to charge 

a batching percentage on batched 

determinations based on the number of 

line items.135 For the purposes of this 

analysis, the Departments assume that a 

subset of approximately 8 percent of 

batched determinations, or 2,160 

determinations, potentially subject to 

the batched percentages would receive 

at least a 120 percent increase from the 

median batched determination fixed fee 

($770 × 1.20 = $924). As such, the 

Departments estimate that the parties 

would pay approximately $1,995,840 for 

this subset of batched determinations 

potentially subject to a batching 

percentage (2,160 × $924), resulting in a 

total cost of approximately $80 million 

under the current calendar year 2023 

certified IDR entity fee structure 

($59,292,000 for single determinations + 

$19,126,800 for batched determinations 

+ $1,995,840 for the subset of batched 

determinations subject to the tiered fee). 

Therefore, taking into account the 

current costs to the parties associated 

with the current certified IDR entity fee 

structure, the total cost to the parties 


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136U.S. Bureau of Labor Statistics (May 1, 2022). 

May 2022 National Occupational Employment and 

Wage Estimates. https://www.bls.gov/oes/current/ 

oes_nat.htm. 137 88 FR 75744. 

associated with this policy is 

approximately $9 million ($89 million 

as finalized minus $80 million if the 

status quo fee ranges were to continue). 

The Departments sought comment on 

these costs and assumptions. The 

Departments did not receive comments 

on these costs or assumptions and are 

finalizing them as proposed. 

3. Uncertainties 

It is unclear whether the Federal IDR 

process will experience the same 

operating conditions when these rules 

are effective compared to the current 

state, such as the number of disputes 

initiated, future policy changes finalized 

after future notice and comment 

rulemaking, or increased or decreased 

costs by the Departments to carry out 

the Federal IDR process. Due to the need 

to take point-in-time estimates of 

volume and expenditures for the 

purposes of developing the analyses in 

the preamble to these rules, there is 

inherent uncertainty in the estimates in 

these analyses as the data are constantly 

changing. It is difficult to project the 

impact on the administrative fee amount 

charged to the parties if the Federal IDR 

process landscape changes. Although 

the Departments have analyzed the 

Federal IDR process data available to 

inform their projections, it is uncertain 

whether the trends in these data will 

remain applicable in the future. At the 

same time, the Departments do not 

know what impact the changes to the 

Federal IDR process as a result of the 

District Court’s opinions and orders in 

TMA IV and TMA III will have on the 

number of disputes initiated and the 

time it will take certified IDR entities to 

close those disputes. The Departments 

continue to monitor trends in the 

Federal IDR process and will make any 

necessary changes through future notice 

and comment rulemaking. 

4. Regulatory Review Cost Estimation 

If regulations impose administrative 

costs on entities, such as the time 

needed to read and interpret rules, 

regulatory agencies should estimate the 

total cost associated with regulatory 

review. Based on comments received for 

the July 2021 interim final rules and 

October 2021 interim final rules, the 

Departments estimate that more than 

2,100 entities will review these final 

rules, including 1,500 issuers, 205 third 

party administrators (TPAs), and at least 

395 other interested parties (for 

example, State insurance departments, 

State legislatures, industry associations, 

advocacy organizations, and providers 

and provider organizations). The 

Departments acknowledge that this 

assumption may understate or overstate 

the number of entities that will review 

these final rules. 

Using the median hourly wage rate 

from the Bureau of Labor Statistics for 

a Lawyer (Code 23–1011) to account for 

average labor costs (including a 100 

percent increase for the cost of fringe 

benefits and other indirect costs), the 

Departments estimate that the cost of 

reviewing these final rules will be 

$130.52 per hour.136 The Departments 

estimate, based on an estimated rule 

length of approximately 35,000 words 

and an average reading speed of 200 to 

250 words per minute, that it will take 

each reviewing entity approximately 

2.33 hours to review these final rules, 

with an associated cost of 

approximately $304.11 (2.33 hours × 

$130.52 per hour). Therefore, the 

Departments estimate that the total 

burden to review these final rules will 

be approximately 4,893 hours (2,100 

reviewers × 2.33 hours per reviewer), 

with an associated cost of 

approximately $638,631 (2,100 

reviewers × $304.11 per reviewer). 

The Departments sought comments in 

the IDR Fees proposed rules on this 

approach to estimating the total burden 

and cost for interested parties to read 

and interpret the IDR Fees proposed 

rules, which is the same approach used 

to estimate the total burden and cost for 

interested parties to read and interpret 

these final rules. The Departments did 

not receive comments on this approach 

and cost. The Departments are finalizing 

these estimates as proposed. 

E. Regulatory Alternatives— 

Departments of Health and Human 

Services and Labor 

In developing these final rules, the 

Departments considered various 

alternative approaches. 

1. Administrative Fee Amount and 

Methodology (26 CFR 54.9816–8(d)(2), 

29 CFR 2590.716–8(d)(2), and 45 CFR 

149.510(d)(2)) 

In its TMA IV opinion and order, the 

District Court indicated that notice and 

comment rulemaking is necessary to set 

the administrative fee, and the 

Departments are of the view that 

alternative approaches would lead to 

unnecessary uncertainty. In addition, 

providing a description of the 

methodology used to calculate the fee 

amount and proposing the 

administrative fee amount in the IDR 

Fees proposed rules would increase 

transparency for the parties and provide 

interested parties the opportunity to be 

included in the fee setting process. The 

Departments considered that guidance 

has historically been used to set the 

administrative fee amount based on 

concerns that the requirement to collect 

fees sufficient to fund the Federal IDR 

process. The lead time required to set 

the fee amount in notice and comment 

rulemaking could constrain the 

Departments’ responsiveness to program 

needs and artificially inflate the 

administrative fee amount due to the 

need to ensure adequate funding of the 

process. However, in light of TMA IV, 

the increased transparency and 

opportunity for interested parties to 

provide feedback on the administrative 

fee methodology and amount 

outweighed the potential concern that 

the administrative fee might be 

artificially inflated by the need to make 

conservative estimates to set the 

administrative fee amount further in 

advance through notice and comment 

rulemaking. 

The Departments considered 

proposing other administrative fee 

policies in the IDR Fees proposed rules, 

such as those proposed in the IDR 

Operations proposed rules.137 However, 

as discussed in section II.A of this 

preamble, the Departments were unable 

to propose those policies in the IDR 

Fees proposed rules because they are 

much more comprehensive than the feerelated policies proposed in the IDR 

Fees proposed rules and would require 

more time to develop and implement if 

finalized. There is an urgency to publish 

these final rules to be effective as close 

to January 1, 2024 as possible due to the 

need to sufficiently fund the Federal 

IDR process in 2024. As discussed in 

sections I.E and II.A of these final rules, 

the current $50 administrative amount 

is insufficient to satisfy the statutory 

requirement that the total amount of 

fees paid for a year be estimated to be 

equal to the amount of expenditures 

estimated to be made by the 

Departments for the year in carrying out 

the Federal IDR process. Therefore, the 

Departments deferred those substantial 

changes to the Federal IDR process and 

administrative fee structure and 

collection procedures to the IDR 

Operations proposed rules, which are 

aimed at improving Federal IDR process 

operations and making the process more 

accessible. 

2. Certified IDR Entity Fee Ranges (26 

CFR 54.9816–8(e)(2), 29 CFR 2590.716– 

8(e)(2), and 45 CFR 149.510(e)(2)) 

The Departments considered 

maintaining the current policy that the 

allowable ranges for certified IDR entity 


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Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88519 

138 44 U.S.C. 3501 et seq. 

139The Departments expect that most self-insured 

group health plans will work with a TPA to meet 

the requirements. 140 5 U.S.C. 601, et seq. 141The Department of Labor consulted with the 

Small Business Administration Office of Advocacy 

in making this determination, as required by 5 

U.S.C. 603(c) and 13 CFR 121.903(c) in a memo 

dated June 4, 2020. 142 29 U.S.C. 1024(a)(2). 143 29 U.S.C. 1024(a)(3). 144 Id. 

145 29 CFR 2520.104–20, 2520.104–21, 2520.104– 

41, 2520.104–46, and 2520.104b-10. 

146 13 CFR 121.201 (2011). 

147 15 U.S.C. 631 et seq. (2011). 

148Centers for Medicare & Medicaid Services 

(2022). Medical Loss Ratio Data and System 

Resources. https://www.cms.gov/CCIIO/Resources/ 

Data-Resources/mlr. 

149Non-issuer TPAs based on data derived from 

the 2016 benefit year reinsurance program 

contributions. 

150United States Small Business Administration 

(March 17, 2023). Table of Size Standards. https:// 

www.sba.gov/document/support--table-sizestandards. 

151Centers for Medicare & Medicaid Services 

(2022). Medical Loss Ratio Data and System 

Resources. https://www.cms.gov/CCIIO/Resources/ 

Data-Resources/mlr. 

152The Departments are of the view that most 

TPAs are also issuers. 

fees would be set in guidance yearly 

instead of through notice and comment 

rulemaking. The Departments 

considered whether continuing to set 

the certified IDR entity fee ranges in 

guidance would preserve necessary 

flexibility for the certified IDR entities 

to choose their fixed fees within the 

allowable ranges and submit those fees 

for approval to the Departments, and 

would allow the Departments time to 

review and approve each certified IDR 

entity’s fees and publish them in 

advance of the year to which the fees 

apply. The Departments concluded that 

publishing the fee ranges in guidance 

could be a more expedient process 

compared to rulemaking because of the 

lack of required comment period; 

however, establishing the fee ranges 

through notice and comment 

rulemaking would not prevent the 

Departments from reviewing and 

approving each certified IDR entity’s 

fixed fee amounts in a timely manner. 

The Departments are of the view that 

there would be no impact to the ability 

of the certified IDR entities to select 

their fees from the established ranges if 

those ranges were published through 

notice and comment rulemaking. 

Further, setting the certified IDR entity 

fee ranges through guidance does not 

allow interested parties to engage 

through the submission of public 

comments, while the notice and 

comment rulemaking process increases 

transparency and will afford an 

opportunity for the Departments to 

consider feedback from interested 

parties on the appropriateness of 

proposed fee ranges. 

F. Paperwork Reduction Act 

These final rules are not subject to the 

requirements of the Paperwork 

Reduction Act of 1995,138 because the 

Departments anticipate that fewer than 

10 certified IDR entities will submit 

requests to update their certified IDR 

entity fees an additional time during the 

calendar year based on current 

experience operating the Federal IDR 

process, and they do not contain any 

other collection of information as 

defined in 44 U.S.C. 3502(3). Therefore, 

clearance by OMB under the Paperwork 

Reduction Act of 1995 is not required. 

G. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601, et seq.) requires agencies 

to analyze options for regulatory relief 

of small entities and to prepare a final 

regulatory flexibility analysis to 

describe the impact of these final rules 

on small entities, unless the head of the 

agency can certify that the rule would 

not have a significant economic impact 

on a substantial number of small 

entities. The RFA generally defines a 

‘‘small entity’’ as (1) a proprietary firm 

meeting the size standards of the Small 

Business Administration (SBA), (2) a 

not-for-profit organization that is not 

dominant in its field, or (3) a small 

government jurisdiction with a 

population of less than 50,000. States 

and individuals are not included in the 

definition of ‘‘small entity.’’ The 

Departments use a change in revenues 

of more than 3 to 5 percent as their 

measure of significant economic impact 

on a substantial number of small 

entities. For purposes of the RFA, small 

entities include small businesses, 

nonprofit organizations, and small 

governmental jurisdictions. The 

Secretaries of Labor, the Treasury, and 

Health and Human Services certify that 

these final rules will not have a 

significant economic impact on a 

substantial number of small entities, as 

presented in the analysis in the 

following subsections of this preamble. 

1. Small Entities Regulated 

The provisions in these final rules 

will affect plans (or their TPAs),139

health insurance issuers offering group 

or individual health insurance coverage, 

and providers, facilities, and providers 

of air ambulance services. 

For purposes of analysis under the 

RFA,140 the Departments consider an 

employee benefit plan with fewer than 

100 participants to be a small entity.141

The basis of this definition is found in 

section 104(a)(2) of ERISA,142 which 

permits the Secretary of Labor to 

prescribe simplified annual reports for 

plans that cover fewer than 100 

participants. Under section 104(a)(3),143

the Secretary may also provide for 

exemptions or simplified annual 

reporting and disclosure for welfare 

benefit plans. Under the authority of 

section 104(a)(3),144 the Department of 

Labor has previously issued simplified 

reporting provisions and limited 

exemptions from reporting and 

disclosure requirements for small plans, 

including unfunded or insured welfare 

plans, which cover fewer than 100 

participants and satisfy certain 

requirements.145 While some large 

employers have small plans, small plans 

are generally maintained by small 

employers. Thus, the Departments are of 

the view that assessing the impact of 

these final rules on small plans is an 

appropriate substitute for evaluating the 

effect on small entities. The definition 

of a small entity considered appropriate 

for this purpose differs, however, from 

a definition of a small business based on 

size standards issued by the SBA 146 in 

accordance with the Small Business 

Act.147

In 2021, there were 1,500 issuers in 

the U.S. health insurance market 148 and 

205 TPAs.149 Health insurance issuers 

are generally classified under the North 

American Industry Classification 

System (NAICS) code 524114 (Direct 

Health and Medical Insurance Carriers). 

According to SBA size standards,150

entities with average annual receipts of 

$47 million or less are considered small 

entities for this NAICS code. The 

Departments expect that few, if any, 

insurance companies underwriting 

health insurance policies fall below 

these size thresholds. Based on data 

from Medical Loss Ratio (MLR) annual 

report submissions for the 2021 MLR 

reporting year, approximately 87 out of 

483 issuers of health insurance coverage 

nationwide had total premium revenue 

of $47 million or less.151 However, it 

should be noted that also based on MLR 

data, over 77 percent of these small 

companies belong to larger holding 

groups, and many, if not all, of these 

small companies, are likely to have nonhealth lines of business that would 

result in their revenues exceeding $47 

million. The Departments are of the 

view that the same assumptions also 

apply to TPAs that would be affected by 

these proposed rules.152 To produce a 

conservative estimate, for the purposes 

of this analysis, the Departments assume 

4.1 percent, or 62 issuers and 8 TPAs, 

of the total of 1,500 health insurance 


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88520 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

153These numbers are calculated as follows: 77 

percent of small companies belong to larger holding 

groups, so 23 percent do not and would be small 

entities. 87 issuers × 0.23 = 20. 20/483 = 4.1 

percent. Applying the 4.1 percent to 1,500 issuers 

and 205 TPAs total = 62 small issuers and 8 small 

TPAs. 

154See 86 FR 56051 for more information on this 

estimate. 

155Based on data from the NAICS Association for 

NAICS code 62111, the Departments estimate the 

percent of businesses within the industry of Offices 

of Physicians with less than $16 million in annual 

sales. United States Census Bureau (May 2021). 

2017 SUSB Annual Data Tables by Establishment 

Industry. https://www.census.gov/data/tables/2017/ 

econ/susb/2017-susb-annual.html. 

156Based on data from the NAICS Association for 

NAICS code 62211, the Departments estimate the 

percent of businesses within the industry of General 

Medical and Surgical Hospitals with less than $47 

million in annual sales. United States Census 

Bureau (May 2021). 2017 SUSB Annual Data Tables 

by Establishment Industry. https://www.census.gov/ 

data/tables/2017/econ/susb/2017-susbannual.html. 

157ASPE Office of Health Policy (September 10, 

2021). Air Ambulance Use and Surprise Billing. 

https://aspe.hhs.gov/sites/default/files/2021-09/ 

aspe-air-ambulance-ib-09-10-2021.pdf. 

158Adler, L., Hannick, K., and Lee, S. ‘‘High Air 

Ambulance Charges Concentrated in Private EquityOwned Carriers.’’ U.S.C.-Brookings Schaffer 

Initiative for Health Policy. October 13, 2020. 

https://www.brookings.edu/articles/high-airambulance-charges-concentrated-in-private-equityowned-carriers/. 

159See U.S. Department of Health and Human 

Services, U.S. Department of Labor, and U.S. 

Department of the Treasury, Partial Report on the 

Federal Independent Dispute Resolution (IDR) 

Process, October 1–December 31, 2022. (n.d.). 

https://www.cms.gov/files/document/partial-reportidr-process-octoberdecember-2022.pdf. 

160Based on the Departments’ experience 

operating the Federal IDR process, the estimate of 

67,320 small providers and facilities is likely a 

significant overestimate, and therefore the 

Departments assume that this estimate accounts for 

any non-physician providers who may be impacted 

by these rules for whom the Departments lack data 

to estimate. 

161Top initiating parties represent hundreds of 

individual providers across multiple states. Top 

non-initiating parties operate across multiple states 

and market segments. See U.S. Department of 

Health and Human Services, U.S. Department of 

Labor, and U.S. Department of the Treasury, Partial 

Report on the Federal Independent Dispute 

Resolution (IDR) Process, October 1–December 31, 

2022. (n.d.). https://www.cms.gov/files/document/ 

partial-report-idr-process-octoberdecember2022.pdf. 

162 492,000 administrative fees paid/2 types of 

parties = 246,000 administrative fees paid by 

providers. 246,000 administrative fees paid by 

providers ¥85 percent (209,100) administrative 

fees paid for disputes initiated by the top 10 

initiating parties = 36,900 administrative fees paid 

for disputes initiated by other initiating parties. 

36,900 disputes/67,320 small providers and 

facilities = approximately 0.5 disputes initiated per 

small provider or facility annually. For simplicity 

and to be conservative, the Departments assume 1 

dispute per provider or facility. 1 dispute × $115 

per dispute = $115 per small provider or facility. 

163 492,000 administrative fees paid/2 types of 

parties = 246,000 administrative fees paid by 

issuers/TPAs. 246,000 administrative fees paid by 

issuers/TPAs ¥95 percent (233,700) administrative 

fees paid for disputes initiated against the top 10 

non-initiating parties = 12,300 administrative fees 

paid for disputes initiated against other noninitiating parties. 12,300 disputes/1,695 issuers/ 

TPAs = approximately 7 disputes per small issuer/ 

TPA annually. 7 disputes × $115 per dispute = 

$805. 

issuers and 205 TPAs across the 

country, are considered small 

entities.153

These final rules also affect health 

care providers and facilities due to the 

proposed requirements related to the 

certified IDR entity and administrative 

fees. The Departments estimate that 

140,270 physicians, on average, bill on 

an out-of-network basis annually.154

The number of small physician 

providers is estimated based on the 

SBA’s size standards. The size standard 

applied for providers is NAICS 62111 

(Offices of Physicians), for which a 

business with less than $16 million in 

receipts is considered to be small. By 

this standard, the Departments estimate 

that 47.2 percent or 66,207 physicians 

are considered small under the SBA’s 

size standards.155 The size standard for 

facilities is NAICS 62211 (General 

Medical and Surgical Hospitals), for 

which a business with less than $47 

million in receipts is considered to be 

small. By this standard, the Departments 

estimate that 43.5 percent or 1,113 

facilities are considered small under the 

SBA’s size standards.156 These final 

rules are also expected to affect nonphysician providers who bill on an outof-network basis. The Departments lack 

data on the number of non-physician 

providers who will be impacted by 

these final rules. 

The Departments do not have the 

same level of data for the air ambulance 

subsector. In 2020, the total revenue of 

providers of air ambulance services was 

estimated to be $4.2 billion, with 1,114 

air ambulance bases.157 This results in 

an industry average of $3.8 million per 

air ambulance base. Based on a 2020 

U.S.C.-Brookings Schaeffer report on air 

ambulance services,158 by 2017, large 

private equity firms controlled roughly 

two-thirds of the air ambulance market. 

Although based on the Departments’ 

experience operating the Federal IDR 

process, significantly fewer than 67,320 

small providers and facilities have 

accessed the process to date,159 the 

Departments lack adequate data to better 

inform the number of small providers 

impacted by these final rules. Therefore, 

although the estimate of 67,320 small 

providers and facilities is likely a 

significant overestimate of the number 

of small providers and facilities 

impacted by these final rules, the 

Departments use this number of small 

providers and facilities in this analysis 

to be conservative.160

Additionally, as discussed in the 

Partial Report on the Federal 

Independent Dispute Resolution (IDR) 

Process, October 1–December 31, 2022, 

the top 10 initiating parties (or entities 

acting on behalf of initiating parties) are 

large companies that initiate 

approximately 85 percent of disputes, 

and the top 10 non-initiating parties are 

large companies that are initiated 

against in approximately 95 percent of 

disputes.161 Therefore, for purposes of 

this analysis, the Departments assume 

that only 15 percent of all disputes 

involve small providers. The 5 percent 

of all disputes that do not involve the 

top 10 non-initiating parties could 

involve any of the 1,695 issuers and 

TPAs that are not the top 10 noninitiating parties (1,500 issuers and 205 

TPAs total ¥10 top non-initiating 

parties = 1,695 remaining issuers and 

TPAs). The Departments assume that 

the proportion of small issuers and 

TPAs to non-top 10 issuers and TPAs is 

the same as the proportion of disputes 

involving small issuers and TPAs to 

disputes involving non-top 10 issuers 

and TPAs, as the volume of disputes 

issuers and TPAs are involved in should 

be proportional to the size of their 

enrollment. Taking into consideration 

these estimates of the small entities, the 

policies in these rules that result in an 

increased burden to small entities are 

described below. 

2. Compliance Costs 

The Departments are finalizing the 

policy to establish the administrative fee 

amount in notice and comment 

rulemaking and are finalizing that the 

administrative fee amount for disputes 

initiated on or after the effective date of 

these rules is $115 per party per 

dispute. The annual burden per small 

provider or facility associated with this 

policy is $115,162 and the annual 

burden per small issuer/TPA is $805.163

For more details, please refer to the 

Regulatory Impact Analysis in these 

final rules. 


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164 Data from the first full year of Federal IDR 

process operations show that initiating parties 

prevail in approximately 70 percent of disputes. See 

Centers for Medicare & Medicaid Services (April 27, 

2023). Federal Independent Dispute Resolution 

Process—Status Update. Therefore, as the 

prevailing party’s certified IDR entity fee is 

refunded per 26 CFR 54.9816–8T(d)(1)(ii), 29 CFR 

2590.716–8(d)(1)(ii), and 45 CFR 149.510(d)(1)(ii), 

initiating parties only pay the certified IDR entity 

fee for 30 percent of disputes, while non-initiating 

parties pay for the other 70 percent.https://

www.cms.gov/files/document/federal-idrprocessstatus-update-april-2023.pdf. The 

Departments estimate based on internal data that 

certified IDR entity fees are paid for approximately 

135,000 disputes annually. Of those 135,000 

disputes, the Departments estimate that 30 percent 

(or 40,500) have their certified IDR entity fees paid 

by providers/facilities, and 70 percent (or 94,500) 

have their certified IDR entity fees paid by issuers/ 

TPAs. Of the 40,500 disputes for which the certified 

IDR entity fee is paid by providers or facilities, 85 

percent (or 34,425) are paid by the top 10 initiating 

parties. The remaining 15 percent (or 6,075) are 

paid by other initiating parties. 6,075 disputes/ 

67,320 small providers and facilities = less than 1 

certified IDR entity fee paid per small provider or 

facility. For simplicity and to be conservative, the 

Departments assume 1 certified IDR entity fee paid 

per small provider or facility. The average certified 

IDR entity fee across both single and batched 

disputes, including the tiered batched fee, in 2024 

is $657 as calculated in accordance with these final 

rules. 

165Of the 94,500 disputes that have their certified 

IDR entity fees paid by issuers, 95 percent (or 

89,775) are paid by the top 10 non-initiating parties. 

The remaining 5 percent (or 4,725) are paid by other 

non-initiating parties. 4,725 disputes/1,695 issuers/ 

TPAs = approximately 3 certified IDR entity fees 

paid per small issuer/TPA. The average certified 

IDR entity fee across both single and batched 

disputes, including the tiered batched fee, in 2024 

is $657 as calculated in accordance with these final 

rules. 3 disputes × $657 per dispute = $1,971 per 

small issuer/TPA. 

166See U.S. Department of Health and Human 

Services, U.S. Department of Labor, and U.S. 

Department of the Treasury, Partial Report on the 

Federal Independent Dispute Resolution (IDR) 

Process, October 1–December 31, 2022. (n.d.). 

https://www.cms.gov/files/document/partial-reportidr-process-octoberdecember-2022.pdf. 

167Fielder, M., Adler, L., Ippolito, B. (March 16, 

2021). Recommendations for Implementing the No 

Surprises Act. U.S.C.-Brookings Schaeffer on Health 

Policy. https://www.brookings.edu/blog/uscbrookings-schaeffer-on-health-policy/2021/03/16/ 

recommendations-for-implementing-the-nosurprises-act/. 

The Departments are finalizing the 

policy to establish the certified IDR 

entity fee ranges in notice and comment 

rulemaking and are finalizing that the 

ranges are $200–$840 for single 

determinations and $268–$1,173 for 

batched determinations, with a $75– 

$250 tiered fee range for disputes that 

contain more than 25 line items. The 

annual burden per small provider or 

facility associated with this policy is 

$657,164 and the annual burden per 

small issuer/TPA is $1,971.165 For more 

details, please refer to the Regulatory 

Impact Analysis in these final rules. 

Thus, the per-entity annual cost for 

small providers and facilities is $772, 

and the per-entity annual cost for small 

issuers and TPAs is $2,776. The total 

estimated annual cost for small 

providers and facilities is $51,971,040, 

and the total estimated annual cost for 

small issuers and TPA is $194,320. See 

Tables 2 and 3. 

3. Analysis and Certification Statement 

The annual cost per small provider or 

facility of $772 is approximately 0.07 

percent of the average annual receipts 

per small provider and approximately 

0.04 percent of the average annual 

receipts per small facility. The 

Departments anticipate that small 

providers and facilities would be 

unlikely to initiate disputes and thereby 

incur these costs unless they anticipate 

prevailing in the dispute and receiving 

payment from plans or issuers that 

exceed the costs incurred to initiate the 

dispute. Additionally, data from the 

public reports on the Federal IDR 

process released to date by the 

Departments show that providers and 

facilities prevail in approximately 70 

percent of disputes.166 Therefore, small 

providers and facilities are likely to 

experience an increase in receipts 

commensurate or larger than the 

increase in costs. 

The annual cost per small issuer/TPA 

of $2,776 is approximately 0.15 percent 

of the average annual receipts per small 

issuer/TPA. While small issuers/TPAs 

could pass on these increased costs to 

consumers in the form of higher 

premiums (or for TPAs, higher 

administration fees), resulting in an 

increase in receipts commensurate with 

the increase in costs, the actual increase 

in costs and subsequent impact on 

revenue would be de minimis as the 

annual cost per small issuer/TPA is so 

small. Additionally, the Departments 

anticipate that by batching qualified IDR 

items and services, there may be a 

reduction in the per-service cost of the 

Federal IDR process to providers of 

certain services and specialties, and 

potentially the aggregate administrative 

costs, because the Federal IDR process 

is likely to exhibit at least some 

economies of scale.167

As its measure of significant 

economic impact on a substantial 

number of small entities, HHS uses a 

change in revenue of more than 3 to 5 


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TABLE 2: Detailed Annual Costs for Small Entities 

Description of Cost Annual Cost per Small Annual Cost per Small 

Provider or Facility Issuer/TPA 

Administrative Fee $115 $805 

Certified IDR Entity Fee $657 $1,971 

Total $772 $2,776 

TABLE 3: Aggregate Annual Costs for Small Entities 

Affected Entity Affected Small Entities Annual Cost per Entity Aggregate Annual Cost for 

Small Entities 

Provider or Facility 67,320 $772 $51,971,040 

Issuer/TPA 70 $2,776 $194,320 
88522 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

168United States Census Bureau (March 2020). 

2017 SUSB Annual Data Tables by Establishment 

Industry, Data by Enterprise Receipt Size. https:// 

www.census.gov/data/tables/2020/econ/susb/2020- 

susb-annual.html. 

169 5 U.S.C. 603. 

170 26 U.S.C. 7805(f). 

171 2 U.S.C. 1511. 

percent. The Departments are of the 

view that this threshold will not be 

reached by the requirements in these 

final rules, given that the annual perentity cost of $2,776 per small issuer/ 

TPA represents 0.15 percent of the 

average annual receipts for a small 

issuer/TPA and the annual per-entity 

cost of $772 per small provider/facility 

represents 0.07 percent and 0.04 percent 

of the average annual receipts for a 

small provider or facility, 

respectively.168 Therefore, the 

Secretaries of Labor, the Treasury, and 

Health and Human Services hereby 

certify that these final rules will not 

have a significant economic impact on 

a substantial number of small entities. 

The Departments sought comment on 

this analysis and sought information on 

the number of small plans (or TPAs), 

issuers, providers, and facilities that 

may be affected by the provisions in the 

IDR Fees proposed rules. The 

Departments did not receive comments 

on this analysis. The Departments 

received comments on the impact of the 

provisions in the IDR Fees proposed 

rules on small providers and respond to 

those comments in section II of this 

preamble. 

In addition, section 1102(b) of the 

Social Security Act requires the 

Departments to prepare a regulatory 

impact analysis if a rule may have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals. This analysis must conform to 

the provisions of section 603 of the 

RFA.169 For purposes of section 1102(b) 

of the Act, the Departments define a 

small rural hospital as a hospital that is 

located outside of a metropolitan 

statistical area and has fewer than 100 

beds. These final rules are not subject to 

section 1102 of the Act because the IDR 

Fees proposed rules were not proposed 

under title XVIII, title XIX, or part B of 

title XI of the Act, and therefore section 

1102(b) of the Act does not apply. 

H. Special Analyses—Department of the 

Treasury 

Pursuant to the Memorandum of 

Agreement, Review of Treasury 

Regulations under Executive Order 

12866 (June 9, 2023), tax regulatory 

actions issued by the IRS are not subject 

to the requirements of section 6 of 

Executive Order 12866, as amended. 

Therefore, a regulatory impact 

assessment is not required. Pursuant to 

section 7805(f) of the Code,170 these 

regulations have been submitted to the 

Chief Counsel for Advocacy of the Small 

Business Administration for comment 

on their impact on small business. 

I. Unfunded Mandates Reform Act 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 

(UMRA) 171 requires that agencies assess 

anticipated costs and benefits and take 

certain other actions before issuing a 

proposed rule or any final rule for 

which a general notice of proposed 

rulemaking was published that includes 

any Federal mandate that may result in 

expenditures in any 1 year by State, 

local, or tribal governments, in the 

aggregate, or by the private sector, of 

$100 million in 1995 dollars, updated 

annually for inflation. That threshold is 

approximately $177 million in 2023. As 

discussed earlier in the RIA, plans, 

issuers, TPAs, and providers, facilities, 

and providers of air ambulance services 

will incur costs to comply with the 

provisions of these final rules. The 

Departments estimate the combined 

impact on State, local, or tribal 

governments and the private sector will 

not be above the threshold. 

J. Federalism 

Executive Order 13132 outlines the 

fundamental principles of federalism. It 

requires adherence to specific criteria by 

Federal agencies in formulating and 

implementing policies that have 

‘‘substantial direct effects’’ on the 

States, the relationship between the 

National Government and States, or on 

the distribution of power and 

responsibilities among the various 

levels of government. Federal agencies 

issuing regulations that have these 

federalism implications must consult 

with State and local officials and 

describe the extent of their consultation 

and the nature of the concerns of State 

and local officials in the preamble to the 

IDR Fees proposed rules. 

The Departments do not anticipate 

that these final rules will have 

federalism implications or limit the 

policy-making discretion of the States in 

compliance with the requirement of 

Executive Order 13132. 

State and local government health 

plans may be subject to the Federal IDR 

process where a specified State law or 

All-Payer Model Agreement does not 

apply. The No Surprises Act authorizes 

States to enforce the new requirements, 

including those related to balance 

billing, for issuers, providers, facilities, 

and providers of air ambulance services, 

with HHS enforcing only in cases where 

the State has notified HHS that the State 

does not have the authority to enforce 

or is otherwise not enforcing, or HHS 

has made a determination that a State 

has failed to substantially enforce the 

requirements. However, in the 

Departments’ view, the federalism 

implications of these final rules are 

substantially mitigated because some 

States have their own process for 

determining the total amount payable 

under a plan or coverage for out-ofnetwork emergency services and to outof-network providers for patient visits to 

in-network facilities for non-emergency 

services. Where a State has a specified 

State law, the State law, rather than the 

Federal IDR process, will apply. 

In compliance with the requirement 

of Executive Order 13132 that agencies 

examine closely any policies that may 

have federalism implications or limit 

the policy making discretion of the 

States, the Departments have engaged in 

efforts to consult with and work 

cooperatively with affected States, 

including participating in conference 

calls with and attending conferences of 

the National Association of Insurance 

Commissioners and consulting with 

State insurance officials on an 

individual basis. 

While developing these rules, the 

Departments attempted to balance the 

States’ interests in regulating health 

insurance issuers with the need to 

ensure market stability. By doing so, the 

Departments complied with the 

requirements of Executive Order 13132. 

In accordance with Federal law, a 

summary of these rules may be found at 

https://www.regulations.gov/. 

List of Subjects 

26 CFR Part 54 

Excise taxes, Pensions, Reporting and 

recordkeeping requirements. 

29 CFR Part 2590 

Continuation coverage, Disclosure, 

Employee benefit plans, Group health 

plans, Health care, Health insurance, 

Medical child support, Reporting and 

recordkeeping requirements. 


khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88523 

45 CFR Part 149 

Balance billing, Health care, Health 

insurance, Reporting, and recordkeeping 

requirements, Surprise billing. 

Douglas W. O’Donnell, 

Deputy Commissioner for Services and 

Enforcement, Internal Revenue Service. 

Lily L. Batchelder, 

Assistant Secretary of the Treasury (Tax 

Policy), Department of the Treasury. 

Lisa M. Gomez 

Assistant Secretary, Employee Benefits 

Security Administration, Department of 

Labor. 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 54 

For the reasons stated in the 

preamble, the Department of the 

Treasury and the IRS amend 26 CFR 

part 54 as set forth below: 

PART 54—PENSION EXCISE TAXES 

■ 1. The authority citation for part 54 is 

amended by adding an entry for 

§ 54.9816–8 in numerical order to read 

in part as follows: 

Authority: 26 U.S.C. 7805 * * * 

* * * * * 

Section 54.9816–8 also issued under 26 

U.S.C. 9816. 

* * * * * 

■ 2. Section 54.9816–8 is amended by 

revising paragraphs (a), (b), (c) 

introductory text, (d), and (e) and 

adding headings for paragraphs (f) and 

(g) to read as follows: 

§ 54.9816–8 Independent dispute 

resolution process. 

(a) Scope and definitions. For further 

guidance, see § 54.9816–8T(a). 

(b) Determination of payment amount 

through open negotiation and initiation 

of the Federal IDR process. For further 

guidance, see § 54.9816–8T(b). 

(c) Federal IDR process following 

initiation. For further guidance, see 

§ 54.9816–8T(c) introductory text 

through (c)(3). 

* * * * * 

(d) Costs of IDR process—(1) Certified 

IDR entity fee. For further guidance, see 

§ 54.9816–8T(d)(1). 

(2) Administrative fee. (i) For further 

guidance, see § 54.9816–8T(d)(2)(i). 

(ii) The administrative fee amount 

will be established through notice and 

comment rulemaking no more 

frequently than once per calendar year 

in a manner such that the total 

administrative fees paid for a year are 

estimated to be equal to the amount of 

expenditures estimated to be made by 

the Secretaries of the Treasury, Labor, 

and Health and Human Services for the 

year in carrying out the Federal IDR 

process. The administrative fee amount 

will remain in effect until changed by 

notice and comment rulemaking. For 

disputes initiated on or after January 22, 

2024, the administrative fee amount is 

$115 per party per dispute. 

(3) Severability. (i) Any provision of 

this paragraph (d) or paragraphs 

(e)(2)(vii) and (viii) of this section held 

to be invalid or unenforceable as 

applied to any person or circumstance 

shall be construed so as to continue to 

give the maximum effect to the 

provision permitted by law, including 

as applied to persons not similarly 

situated or to dissimilar circumstances, 

unless such holding is that the 

provision of this paragraph (d) or 

paragraphs (e)(2)(vii) and (viii) is 

invalid and unenforceable in all 

circumstances, in which event the 

provision shall be severable from the 

remainder of this paragraph (d) or 

paragraphs (e)(2)(vii) and (viii) and shall 

not affect the remainder thereof. 

(ii) The provisions in this paragraph 

(d) and paragraphs (e)(2)(vii) and (viii) 

of this section are intended to be 

severable from each other. 

(e) Certification of IDR entity—(1) In 

general. For further guidance see 

§ 54.9816–8T(e)(1). 

(2) Requirements. (i) For further 

guidance, see § 54.8616–8T(e)(2)(i) 

through (vi). 

(ii) through (vi) [Reserved] 

(vii) Provide, no more frequently than 

once per calendar year, a fixed fee for 

single determinations and a separate 

fixed fee for batched determinations, as 

well as additional fixed tiered fees for 

batched determinations, if applicable, 

within the upper and lower limits for 

each, as established by the Secretary in 

notice and comment rulemaking. The 

certified IDR entity fee ranges 

established by the Secretary in 

rulemaking will remain in effect until 

changed by notice and comment 

rulemaking. The certified IDR entity 

may not charge a fee outside the limits 

set forth in rulemaking unless the 

certified IDR entity or IDR entity seeking 

certification receives advance written 

approval from the Secretary to charge a 

fixed fee beyond the upper or lower 

limits by following the process 

described in paragraph (e)(2)(vii)(A) of 

this section. A certified IDR entity may 

also seek advance written approval from 

the Secretary to update its fees one 

additional time per calendar year by 

meeting the requirements described in 

paragraph (e)(2)(vii)(A). The Secretary 

will approve a request to charge a fixed 

fee beyond the upper or lower limits for 

fees as set forth in rulemaking or to 

update the fixed fee during the calendar 

year if, in their discretion, they 

determine the information submitted by 

a certified IDR entity or IDR entity 

seeking certification demonstrates that 

the proposed change to the certified IDR 

entity fee would ensure the financial 

viability of the certified IDR entity or 

IDR entity seeking certification and 

would not impose on parties an undue 

barrier to accessing the Federal IDR 

process. 

(A) In order for the certified IDR 

entity or IDR entity seeking certification 

to receive the Secretary’s written 

approval to charge a fixed fee beyond 

the upper or lower limits for fees as set 

forth in rulemaking or to update the 

fixed fee during the calendar year, the 

certified IDR entity or IDR entity seeking 

certification must submit to the 

Secretary, in the form and manner 

specified by the Secretary: 

(1) The fixed fee the certified IDR 

entity or IDR entity seeking certification 

believes is appropriate for the certified 

IDR entity or IDR entity seeking 

certification to charge; 

(2) A description of the circumstances 

that require the alternative fixed fee, or 

that require a change to the fixed fee 

during the calendar year, as applicable; 

and 

(3) A detailed description that 

reasonably explains how the alternative 

fixed fee or the change to the fixed fee 

during the calendar year, as applicable, 

will be used to mitigate the effects of 

those circumstances. 

(B) [Reserved] 

(viii) For disputes initiated on or after 

January 22, 2024, certified IDR entities 

are permitted to charge a fixed certified 

IDR entity fee for single determinations 

within the range of $200 to $840, and 

a fixed certified IDR entity fee for 

batched determinations within the range 

of $268 to $1,173, unless a fee outside 

such ranges is approved by the 

Secretary, pursuant to paragraph 

(e)(2)(vii)(A) of this section. As part of 

the batched determination fee, certified 

IDR entities are permitted to charge an 

additional fixed tiered fee within the 

range of $75 to $250 for every additional 

25 line items within a batched dispute, 

beginning with the 26th line item. The 

ranges for the certified IDR entity fees 

for single and batched determinations 

will remain in effect until changed by 

notice and comment rulemaking. 

(ix) For further guidance, see 

§ 54.9816–8T(e)(2)(ix) through (xii). 

(x) through (xii) [Reserved] 


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88524 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 

(f) Reporting of information relating to 

the Federal IDR process. * * * 

* * * * * 

(g) Extension of time periods for 

extenuating circumstances. * * * 

* * * * * 

■ 3. Section 54.9816–8T is amended by: 

■ a. Revising paragraph (d)(2)(ii); 

■ b. Adding paragraph (d)(3); 

■ c. Removing the semicolon at the end 

of paragraphs (e)(2)(iii) and (vi) and 

adding a period in its place; 

■ d. Revising paragraph (e)(2)(vii); 

■ e. Redesignating paragraphs (e)(2)(viii) 

through (xi) as paragraphs (e)(2)(ix) 

through (xii); 

■ f. Adding new paragraph (e)(2)(viii); 

■ g. Removing the semicolon at the end 

of newly redesignated paragraphs 

(e)(2)(ix) and (x) and adding a period in 

its place; and 

■ h. Removing ‘‘; and’’ at the end of 

newly redesignated paragraph (e)(2)(xii) 

and adding a period in its place. 

The revisions and additions read as 

follows: 

§ 54.9816–8T Independent dispute 

resolution process (temporary). 

* * * * * 

(d) * * * 

(2) * * * 

(ii) For further guidance, see 

§ 54.9816–8(d)(2)(ii). 

(3) Severability. For further guidance, 

see § 54.9816–8(d)(3). 

(e) * * * 

(2) * * * 

(vii) For further guidance, see 

§ 54.9816–8(e)(2)(vii). 

(viii) For further guidance, see 

§ 54.9816–8(e)(2)(viii). 

* * * * * 

DEPARTMENT OF LABOR 

Employee Benefits Security Administration 

29 CFR Chapter XXV 

For the reasons stated in the 

preamble, the Department of Labor 

amends 29 CFR part 2590 as set forth 

below: 

PART 2590—RULES AND 

REGULATIONS FOR GROUP HEALTH 

PLANS 

■ 4. The authority citation for part 2590 

continues to read as follows: 

Authority: 29 U.S.C. 1027, 1059, 1135, 

1161–1168, 1169, 1181–1183, 1181 note, 

1185, 1185a–n, 1191, 1191a, 1191b, and 

1191c; sec. 101(g), Pub. L. 104–191, 110 Stat. 

1936; sec. 401(b), Pub. L. 105–200, 112 Stat. 

645 (42 U.S.C. 651 note); sec. 512(d), Pub. L. 

110–343, 122 Stat. 3881; sec. 1001, 1201, and 

1562(e), Pub. L. 111–148, 124 Stat. 119, as 

amended by Pub. L. 111–152, 124 Stat. 1029; 

Division M, Pub. L. 113–235, 128 Stat. 2130; 

Pub. L. 116–260, 134 Stat. 1182; Secretary of 

Labor’s Order 1–2011, 77 FR 1088 (Jan. 9, 

2012). 

■ 5. Section 2590.716–8 is amended by: 

■ a. Revising paragraph (d)(2)(ii); 

■ b. Adding paragraph (d)(3); 

■ c. Removing the semicolon at the end 

of paragraphs (e)(2)(iii) and (vi) and 

adding a period in its place; 

■ d. Revising paragraph (e)(2)(vii); 

■ e. Redesignating paragraphs (e)(2)(viii) 

through (xi) as paragraphs (e)(2)(ix) 

through (xii); 

■ f. Adding new paragraph (e)(2)(viii); 

■ g. Removing the semicolon at the end 

of newly redesignated paragraphs 

(e)(2)(ix) and (x) and adding a period in 

its place; and 

■ h. Removing ‘‘; and’’ at the end of 

newly redesignated paragraph (e)(2)(xii) 

and adding a period in its place. 

The revisions and additions read as 

follows: 

§ 2590.716–8 Independent dispute 

resolution process. 

* * * * * 

(d) * * * 

(2) * * * 

(ii) The administrative fee amount 

will be established through notice and 

comment rulemaking no more 

frequently than once per calendar year 

in a manner such that the total 

administrative fees paid for a year are 

estimated to be equal to the amount of 

expenditures estimated to be made by 

the Secretaries of the Treasury, Labor, 

and Health and Human Services for the 

year in carrying out the Federal IDR 

process. The administrative fee amount 

will remain in effect until changed by 

notice and comment rulemaking. For 

disputes initiated on or after January 22, 

2024, the administrative fee amount is 

$115 per party per dispute. 

(3) Severability. (i) Any provision of 

this paragraph (d) or paragraphs 

(e)(2)(vii) and (viii) of this section held 

to be invalid or unenforceable as 

applied to any person or circumstance 

shall be construed so as to continue to 

give the maximum effect to the 

provision permitted by law, including 

as applied to persons not similarly 

situated or to dissimilar circumstances, 

unless such holding is that the 

provision of this paragraph (d) or 

paragraphs (e)(2)(vii) and (viii) is 

invalid and unenforceable in all 

circumstances, in which event the 

provision shall be severable from the 

remainder of this paragraph (d) or 

paragraphs (e)(2)(vii) and (viii) and shall 

not affect the remainder thereof. 

(ii) The provisions in this paragraph 

(d) and paragraphs (e)(2)(vii) and (viii) 

of this section are intended to be 

severable from each other. 

(e) * * * 

(2) * * * 

(vii) Provide, no more frequently than 

once per calendar year, a fixed fee for 

single determinations and a separate 

fixed fee for batched determinations, as 

well as an additional fixed tiered fee for 

batched determinations, if applicable, 

within the upper and lower limits for 

each, as established by the Secretary in 

notice and comment rulemaking. The 

certified IDR entity fee ranges 

established by the Secretary in 

rulemaking will remain in effect until 

changed by notice and comment 

rulemaking. The certified IDR entity 

may not charge a fee outside the limits 

set forth in rulemaking unless the 

certified IDR entity or IDR entity seeking 

certification receives advance written 

approval from the Secretary to charge a 

fixed fee beyond the upper or lower 

limits by following the process 

described in paragraph (e)(2)(vii)(A) of 

this section. A certified IDR entity may 

also seek advance written approval from 

the Secretary to update its fees one 

additional time per calendar year by 

meeting the requirements described in 

paragraph (e)(2)(vii)(A). The Secretary 

will approve a request to charge a fixed 

fee beyond the upper or lower limits for 

fees as set forth in rulemaking, or to 

update the fixed fee during the calendar 

year if, in their discretion, they 

determine the information submitted by 

a certified IDR entity or IDR entity 

seeking certification demonstrates that 

the proposed change to the certified IDR 

entity fee would ensure the financial 

viability of the certified IDR entity or 

IDR entity seeking certification and 

would not impose on parties an undue 

barrier to accessing the Federal IDR 

process. 

(A) In order for the certified IDR 

entity or IDR entity seeking certification 

to receive the Secretary’s written 

approval to charge a fixed fee beyond 

the upper or lower limits for fees as set 

forth in rulemaking or to update the 

fixed fee during the calendar year, the 

certified IDR entity or IDR entity seeking 

certification must submit to the 

Secretary, in the form and manner 

specified by the Secretary: 

(1) The fixed fee the certified IDR 

entity or IDR entity seeking certification 

believes is appropriate for the certified 

IDR entity or IDR entity seeking 

certification to charge; 

(2) A description of the circumstances 

that require the alternative fixed fee, or 

that require a change to the fixed fee 

during the calendar year, as applicable; 

and 

(3) A detailed description that 

reasonably explains how the alternative 

fixed fee or the change to the fixed fee 


khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Rules and Regulations 88525 

during the calendar year, as applicable, 

will be used to mitigate the effects of 

those circumstances. 

(B) [Reserved] 

(viii) For disputes initiated on or after 

January 22, 2024, certified IDR entities 

are permitted to charge a fixed certified 

IDR entity fee for single determinations 

within the range of $200 to $840, and 

a fixed certified IDR entity fee for 

batched determinations within the range 

of $268 to $1,173, unless a fee outside 

such ranges is approved by the 

Secretary pursuant to paragraph 

(e)(2)(vii)(A) of this section. As part of 

the batched determination fee, certified 

IDR entities are permitted to charge an 

additional fixed tiered fee within the 

range of $75 to $250 for every additional 

25 line items within a batched dispute, 

beginning with the 26th line item. The 

ranges for the certified IDR entity fees 

for single and batched determinations 

will remain in effect until changed by 

notice and comment rulemaking. 

* * * * * 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

49 CFR Subtitle A 

For the reasons stated in the 

preamble, the Department of Health and 

Human Services amends 45 CFR part 

149 as set forth below: 

PART 149—SURPRISE BILLING AND 

TRANSPARENCY REQUIREMENTS 

■ 6. The authority citation for part 149 

continues to read as follows: 

Authority: 42 U.S.C. 300gg–92 and 300gg– 

111 through 300gg–139, as amended. 

■ 7. Section 149.510 is amended by: 

■ a. Revising paragraph (d)(2)(ii); 

■ b. Adding paragraph (d)(3); 

■ c. Removing the semicolon at the end 

of paragraphs (e)(2)(iii) and (vi) and 

adding a period in its place; 

■ d. Revising paragraph (e)(2)(vii); 

■ e. Redesignating paragraphs (e)(2)(viii) 

through (xi) as paragraphs (e)(2)(ix) 

through (xii); 

■ f. Adding new paragraph (e)(2)(viii); 

■ g. Removing the semicolon at the end 

of newly redesignated paragraphs 

(e)(2)(ix) and (x) and adding a period in 

its place; and 

■ h. Removing ‘‘; and’’ at the end of 

newly redesignated paragraph (e)(2)(xii) 

and adding a period in its place. 

The revisions and additions read as 

follows: 

§ 149.510 Independent dispute resolution 

process. 

* * * * * 

(d) * * * 

(2) * * * 

(ii) The administrative fee amount 

will be established through notice and 

comment rulemaking no more 

frequently than once per calendar year 

in a manner such that the total 

administrative fees paid for a year are 

estimated to be equal to the amount of 

expenditures estimated to be made by 

the Secretaries of the Treasury, Labor, 

and Health and Human Services for the 

year in carrying out the Federal IDR 

process. The administrative fee amount 

will remain in effect until changed by 

notice and comment rulemaking. For 

disputes initiated on or after January 22, 

2024, the administrative fee amount is 

$115 per party per dispute. 

(3) Severability. (i) Any provision of 

this paragraph (d) or paragraphs 

(e)(2)(vii) and (viii) of this section held 

to be invalid or unenforceable as 

applied to any person or circumstance 

shall be construed so as to continue to 

give the maximum effect to the 

provision permitted by law, including 

as applied to persons not similarly 

situated or to dissimilar circumstances, 

unless such holding is that the 

provision of this paragraph (d) or 

paragraphs (e)(2)(vii) and (viii) is 

invalid and unenforceable in all 

circumstances, in which event the 

provision shall be severable from the 

remainder of this paragraph (d) or 

paragraphs (e)(2)(vii) and (viii) and shall 

not affect the remainder thereof. 

(ii) The provisions in this paragraph 

(d) and paragraphs (e)(2)(vii) and (viii) 

of this section are intended to be 

severable from each other. 

(e) * * * 

(2) * * * 

(vii) Provide, no more frequently than 

once per calendar year, a fixed fee for 

single determinations and a separate 

fixed fee for batched determinations, as 

well as an additional fixed tiered fee for 

batched determinations, if applicable, 

within the upper and lower limits for 

each, as established by the Secretary in 

notice and comment rulemaking. The 

certified IDR entity fee ranges 

established by the Secretary in 

rulemaking will remain in effect until 

changed by notice and comment 

rulemaking. The certified IDR entity 

may not charge a fee outside the limits 

set forth in rulemaking unless the 

certified IDR entity or IDR entity seeking 

certification receives advance written 

approval from the Secretary to charge a 

fixed fee beyond the upper or lower 

limits by following the process 

described in paragraph (e)(2)(vii)(A) of 

this section. A certified IDR entity may 

also seek advance written approval from 

the Secretary to update its fees one 

additional time per calendar year by 

meeting the requirements described in 

paragraph (e)(2)(vii)(A). The Secretary 

will approve a request to charge a fixed 

fee beyond the upper or lower limits for 

fees as set forth in rulemaking or to 

update the fixed fee during the calendar 

year if, in their discretion, they 

determine the information submitted by 

a certified IDR entity or IDR entity 

seeking certification demonstrates that 

the proposed change to the certified IDR 

entity fee would ensure the financial 

viability of the certified IDR entity or 

IDR entity seeking certification and 

would not impose on parties an undue 

barrier to accessing the Federal IDR 

process. 

(A) In order for the certified IDR 

entity or IDR entity seeking certification 

to receive the Secretary’s written 

approval to charge a fixed fee beyond 

the upper or lower limits for fees as set 

forth in rulemaking or to update the 

fixed fee during the calendar year, the 

certified IDR entity or IDR entity seeking 

certification must submit to the 

Secretary, in the form and manner 

specified by the Secretary: 

(1) The fixed fee the certified IDR 

entity or IDR entity seeking certification 

believes is appropriate for the certified 

IDR entity or IDR entity seeking 

certification to charge; 

(2) A description of the circumstances 

that require the alternative fixed fee, or 

that require a change to the fixed fee 

during the calendar year, as applicable; 

and 

(3) A detailed description that 

reasonably explains how the alternative 

fixed fee or the change to the fixed fee 

during the calendar year, as applicable, 

will be used to mitigate the effects of 

those circumstances. 

(B) [Reserved] 

(viii) For disputes initiated on or after 

January 22, 2024, certified IDR entities 

are permitted to charge a fixed certified 

IDR entity fee for single determinations 

within the range of $200 to $840, and 

a fixed certified IDR entity fee for 

batched determinations within the range 

of $268 to $1,173, unless a fee outside 

such ranges is approved by the 

Secretary, pursuant to paragraph 

(e)(2)(vii)(A) of this section. As part of 

the batched determination fee, certified 

IDR entities are permitted to charge an 

additional fixed tiered fee within the 

range of $75 to $250 for every additional 

25 line items within a batched dispute, 

beginning with the 26th line item. The 

ranges for the certified IDR entity fees 

for single and batched determinations 

will remain in effect until changed by 

notice and comment rulemaking. 

* * * * * 

[FR Doc. 2023–27931 Filed 12–18–23; 4:15 pm] 

BILLING CODE 4150–29–P; 4830–01–P; 4120–01–P] 


khammond on DSKJM1Z7X2PROD with RULES2